Tiviot way Investments Ltd v Secretary of State for Communities and Local Government (First Defendant) Stockton-on-Tees Borough Council (Second Defendant/Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Paterson |
| Judgment Date | 21 July 2014 |
| Neutral Citation | [2015] EWHC 2489 (Admin) |
| Docket Number | CO/774/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2014 |
and
[2015] EWHC 2489 (Admin)
Mrs Justice Patterson DBE
CO/774/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr C Lockhart-Mummery QC (instructed by Irwin Mitchell LLP) appeared on behalf of the Claimant
Mr C Zwart (instructed by Stockton-on-Tees BC) appeared on behalf of the Second Defendant/Interested Party
The First Defendant did not appear and was not represented
(As approved)
This is an application, under section 288 of the Town and Country Planning Act, by the claimant to quash a decision letter of the first defendant, dated 20th January 2015, in which he dismissed a planning appeal by the claimant against the refusal on the part of the second defendant of an application for planning permission for residential development (up to 500 houses), local centre (2500 square metres) and means of access at Maltby Farm, Low Lane, Ingleby Barwick.
The claimant is Tiviot Way investments, a property development company with an interest in the appeal site. In a letter dated 14th July 2015 the first defendant conceded, on behalf of the first defendant only, that the Decision Letter should be quashed. As a result the first defendant has played no part in the proceedings before the court.
The second defendant is the local planning authority. It appeared to defend the Decision Letter of the first defendant.
Background
The claimant applied for planning permission on 9th December 2013. The planning application was recommended for approval by officers but refused by the second defendant on 28th February 2014 and an appeal was lodged. It was recovered by the first defendant because the proposal involved residential development of more than 150 units on a site of more than 5 hectares. A planning enquiry was held between the 15th and 17th July 2014.
On 3rd September 2014 the inspector submitted his report to the first defendant. The inspector recommended that the appeal be allowed and that planning permission be granted with conditions. The appeal site is some 22.7 hectares. It is former agricultural land. The site was described in the inspector's report as to the north of land for which the Secretary of State had granted outline planning permission for a free school and residential development (350 units) on 26th September 2013.
The inspector set out his overall conclusions as follows:
"133. Paragraph 47 of the NPPF requires local planning authorities to identify and update annually a supply of specific deliverable sites to provide five years worth of housing against their housing requirements. The Council has a supply of only 4.08 years of housing land in the Borough. Paragraph 49 states that relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.
134. LP policy HO3 is a policy for the supply of housing and must be regarded to be out of date. However, the proposed development has been assessed against this policy and has been found to accord with it. The development would supply much needed housing and affordable housing over the next five years and beyond. The proposed development would cause only negligible harm, to the character of the area, and has also been assessed against relevant elements of CS policy CS3 and CS10, and has been found to accord with these policies also.
135. The proposed development accords with the development plan. Paragraph 14 of the NPPF states that '…there is a presumption in favour of sustainable development which should be seen as a golden thread running through both plan-making and decision-taking…For decision-taking this means approving development proposals that accord with the development plan without delay'. Planning permission for the proposed development should be granted without delay."
In his Decision Letter dated 20th January 2015 the first defendant disagreed with his inspector and dismissed the appeal. He set out the relevant planning policy and agreed with the main issues identified by the inspector. Those issues were set out in paragraph 21 of the inspector's report as follows:
"21. The main issues were set out at the Inquiry as being:
1. Whether the appeal land is part of a designated green wedge and is therefore subject to planning policy that seeks to protect such areas;
2. Whether the proposed development would undermine the separation of Ingleby Barwick and Thornaby;
3. The effect of the proposed development on the character of the area, biodiversity and the quality of the urban environment."
The Decision Letter then proceeded to consider each of these main issues. It said:
"10. The Secretary of State has given careful consideration to the Inspector's analysis at IR103 – 112. He agrees with the Inspector that it would be illogical for green wedge areas to exist on a Proposals Map if these areas are no longer the subject of the development plan policy to which they relate and that, when LP policy EN14 disappeared so too, metaphorically, did the green wedge notations on the LP Proposals Map (IR105). Like the Inspector (IR110), he is of the opinion that the view of the Council and local residents that the appeal land is within a green wedge is not supported by the CS's Strategic Diagram (IR110). The Secretary of State concludes that, notwithstanding the shared view of the previous Inspector and the Secretary of State in respect of Appeal Reference APP/H0738/A/13/2192538, upon the close scrutiny afforded by the inquiry into this appeal, it is evident that there is no development plan support for a conclusion that the appeal land is within a designated green wedge (IR112).
The separation of Ingleby Barwick and Thornaby
11. The Secretary of State has given very careful consideration to the Inspector's reasoning at IR113 – 116. The Secretary of State does not share the Inspector's view (IR116) that the gap that there would be between the proposed development and Teeside Industrial Estate would not undermine the strategic objective, as shown in the CS Strategic Diagram, of providing and maintaining a green wedge in this location. Nor does he concur with the Inspector that, even had the appeal land been in a designated green wedge, the development would leave sufficient green wedge to adequately maintain the separation between Ingleby Barwick and Thornaby (IR117). Whilst the Secretary of State has concluded that the site is not within a green wedge as designated by the relevant development plan, he has taken account of CS Strategic Objective 8 as well as the position of the Council (IR45) which makes clear that it regards the site as lying within a long established green wedge, and the fact that the Council is expected to adopt a Regeneration and Environment Development Plan Document (IR111) in due course. Having also taken account of his decision to allow appeal reference APP/H0738/A/13/2192538 which impacts on the gap between the conurbations of Ingleby Barwick and Thornaby, the Secretary of State agrees with Councillor Rose that development of the appeal site would be 'a bridge too far' (IR75) and he concludes that, were the appeal development to go ahead, the objective of providing and maintaining an adequate green wedge in this location would be undermined. In these circumstances, he considers that the appeal scheme conflicts with CS policy CS10(3) and the strategic objective of providing and maintaining a green wedge between the conurbations of Ingleby Barwick and Thornaby.
The character of the area, biodiversity and the urban environment
12. The Secretary of State agrees with the Inspector that the appeal scheme's proposed buffer zone would provide opportunities for the enhancement of the amenity value of the secondary corridor and would assist the Council in meeting the strategic objectives of their Green Infrastructure Strategy, and that there is no justification for the buffer zone to be 20 metres wide (IR121). Having taken account of the Inspector's remarks at IR122-123, the Secretary of State agrees with him that the openness of the appeal land would be lost as a result of the proposed development. In view of the size of the site, which is currently undeveloped land (IR11), and the extent to which it would be built upon he does not share the Inspector's view that this loss would have only a negligible impact on the character of the area. In his opinion, the proposed development of the appeal site would have a material impact on the character of the area. Having had regard to the Inspector's remarks (IR124), he too is satisfied that the biodiversity value of the proposed development would be, at least, no less than the biodiversity value of the appeal land as it is at present and that the scheme does not give rise to conflict with policy CS10(4). The Secretary of State also sees no reason to disagree with the Inspector's remarks at IR125 and he agrees that the scheme does not conflict with CS policy CS3(8). Turning to the Inspector's remarks at IR126, the Secretary of State agrees that the scheme lies within the limits of development of Ingelby Barwick and that it would remain available for recreational use, albeit restricted. However, as set out above, he considers that the proposed development of this undeveloped open land would have a material impact on the character of the area. Whilst he acknowledges the Inspector's view that the site...
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