Truro City Council v Cornwall City Council
| Jurisdiction | England & Wales |
| Judge | Frances Patterson QC |
| Judgment Date | 13 August 2013 |
| Neutral Citation | [2013] EWHC 2525 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/670/2013 |
| Date | 13 August 2013 |
[2013] EWHC 2525 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Frances Patterson QC
Case No: CO/670/2013
Philip Coppel QC (instructed by Follett Stock) for the Claimant
Jonathan Clay (instructed by The City Solicitor) for the Defendant
Hearing dates: 24th and 25th July 2013
Approved Judgment
Introduction
This is a challenge by way of judicial review by Truro City Council, "the claimant", to a planning permission granted on the 26 October 2012 by Cornwall Council, "the defendant" for the demolition of two houses and construction of Truro Eastern District Centre to comprise Park and Ride, Household Waste and Recycling facility, Cornish Food Centre (Use Class A1), Energy Centre, Hub Building, residential development (97 dwellings and separate lodge house), formation of four new vehicular accesses (A39 Newquay Road), two accesses off A390 Union Hill, bus only access (A39/A390 Union Hill), car and cycle parking, open space, landscaping, and associated works.
The challenge was lodged on the 21 st January 2013. Permission was granted on the papers by Mr Justice Collins on the 6 th March 2013.
Background
The Planning Application was submitted by Cornwall Council, the Duchy of Cornwall and Waitrose Limited. The latter two parties have taken no part in the proceedings. The Planning Application was for the development of a green field site of some 19 ha on the eastern edge of Truro adjacent to the developed area of the city. It was a controversial development proposal. Amongst the objectors was Truro City Council, the claimant. It made representations that, inter alia,
i) The planning application was premature;
ii) The proposal would result in the loss of high quality agricultural land;
iii) The proposed development would cause material harm to and adversely impact upon the vitality of Truro city centre contrary to policy in PPS4;
iv) That the proposed development was in conflict with the Development Plan, especially because new residential development in the open countryside was not justified.
Cornwall's Principal Planning Delivery Officer prepared lengthy reports on the application for consideration by the Council's Strategic Planning Committee. That met, first, on the 15 th December 2011 to consider the application. The decision on the application was deferred on that day:
i) To complete further work in relation to the sequential test for the retail disaggregation option;
ii) To undertake further work on the buffer zone;
iii) To undertake further work on the estimated traffic generation of the figures;
iv) To undertake further work in relation to prematurity of the application.
A further report on those matters was prepared for consideration by the Strategic Planning Committee which met again on the 8 th March 2012. At that meeting members resolved that authority be delegated to the Head of Planning and Regeneration to grant conditional planning permission, with the decision deferred and subject to:
i) "That the application be referred to the Secretary of State pursuant to paragraph 5(1)(ii) of the Town and Country Planning (Consultation) (England) Direction 2009.
ii) That consequent upon the Secretary of State deciding not to call in the application that the planning permission be granted subject to conditions and to the completion of a planning obligation, the heads of terms of which are set out in the report.
iii) That authority be delegated to the Head of Planning and regeneration in consultation with the Chairman, Vice Chairman and Electoral Division Members to approve the satisfactory completion of a Section 106 planning obligation to secure the community benefits (*The request for community benefits related to the need to provide funding for a series of measures which would directly mitigate against the defined loss of trade within the city centre arising from the new retail store, particularly because of the impact on city centre food retailing) to include the establishment of a Liaison Group to help guide the distribution of the developers contributions."
The application was referred to the Secretary of State on the 16 th June 2012. On the 7 th July 2012 a letter confirming that the Secretary of State did not wish to call in the application and that the decision should remain with Cornwall Council was received from the National Planning Case Unit (NPCU).
On the 24 th October 2012 the defendant's Development Manager, Mr Tony Lee, emailed an update note to the defendant's Head of Planning and Regeneration and Chairman of Strategic Planning. That reported on matters since the 8 th March resolution. Amongst other things the note reviewed the application against the new National Planning Policy framework (NPPF) which had been published on 27 th March with immediate effect.
The note concluded:
"A reassessment of the application by the SPC, following the publication of the NPPF, would appear to be unwarranted and inconsistent with the NPPF presumption in favour of sustainable development which the application is clearly able to deliver. The decision by the NPCU not to call in the application would appear to be consistent with its view."
Planning permission was granted on the 26 th October 2012 subject to 46 conditions and a planning obligation between the defendant and the Duchy of Cornwall.
The reason for the grant of planning permission was summarised on the decision notice as follows:
"The proposal constitutes sustainable development which fulfils economic, social and environmental roles, contributing to a strong, competitive economy, safeguarding the viability of the city centre, delivering sustainable transport, making a small but significant housing contribution, including 34 local needs affordable housing units, is of a good standard of design, safe, accessible and which both improves integration and addresses flood risk. Whilst having what is considered to be negative landscape impacts and involves loss of agricultural land (not of the most versatile and highest quality grade), mitigation measures seek to limit impacts and address biodiversity concerns; the proposal seeks to address food production issues and delivers sustainable transport infrastructure in accordance with advice in the National planning Policy Framework such that the benefits sufficiently the identified negative impacts."
Claimant's Case
The claimant challenges the planning permission on six grounds. They are
i) Whether the defendant complied with its duty under s38(6) of the Planning Compulsory Purchase Act 2004;
ii) Whether the defendant gave adequate reasons for the grant of planning permission in accordance with article 31 of the Town and Country Planning (Development Management Procedure)(England) Order 2010;
iii) Whether the defendant ought to have refused planning permission on the grounds of prematurity;
iv) Whether the defendant failed to have regard to material considerations that had arisen since the resolution of the 8 th March 2012 to grant consent, namely,
i. progress that had been made in the local plan and neighbourhood plan;
ii. progress that had been made on a site known as Langarth Farm.
v) Whether the defendant misdirected itself as to the availability of
(i) The sequentially superior site at Pydar Street, Truro;
(ii) On the possibility of disaggregation
vi) Whether the defendant misdirected itself as to the meaning of its affordable housing policy.
Ground One
Whether the defendant complied with its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004?
Legal Framework
Under section70(2) of The Town and County Planning Act 1990, when a planning application is made to a local authority:
"In dealing with such an application the authority shall have regard to provisions of the Development Plan, so far as material to the application, and to any other material considerations."
Under section 38(6) of the Planning and Compulsory Purchase Act 2004,
"If regard is to be had to the Development Plan for the purpose of the determination to be made under the planning acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The meaning of section 38(6) has been the subject of judicial decision. In City of Edinburgh Council v the Secretary of State for Scotland and others [1997] UKHL 38 the House of Lords considered section 18(a) of the Town and Country Planning Scotland Act 1972 which is in the same terms as section 38(6) of the Planning and Compulsory Purchase Act 2004. Because a fair amount of the argument before me turned on the nature of the duty of section 38(6) imposed on a Local Planning Authority it is necessary to set out relevant parts of the judgments. Lord Clyde said at pp1457–1459 as follows:
"By virtue of section 18 A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought useful to talk of presumptions in this field it can be said that there is now a presumption that the Development Plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of PPG1 of 1988, as a...
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