West Berkshire District Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 16 February 2016 |
| Neutral Citation | [2016] EWHC 267 (Admin) |
| Docket Number | Case No: CO/3830/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2016 |
[2016] EWHC 267 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/3830/2015
William Upton (instructed by Legal Services West Berks DC) for the Claimant
David Blundell (instructed by Government Legal Dept) for the First Defendant
Christopher Young and James Corbet Burcher (instructed by Gateleys plc) for the Second Defendant
Hearing date: 3 February 2016
Introduction
By this claim, made pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") the Claimant ("the Council") seeks to challenge the decision of the First Defendant (given by his Inspector) dated 6 July 2015 ("the Decision") allowing the appeal of the Second Defendant ("HDD") against the Council's refusal of planning permission for development on land at Firlands Farm, Hollybush Lane, Burghfield Common, Reading, Berkshire ("the Site").
Factual Background
The application for planning permission was dated 27 June 2014, and was refused by notice dated 22 October 2014. The development proposed was the "erection of up to 129 dwellings with vehicular access onto Hollybush Lane and associated public open space, landscaping and drainage work". Following the submission of revised plans during the appeal process, showing a reduced number of dwellings, planning permission was granted for the erection of up to 90 dwellings.
The Decision Letter ("DL") records that:
"12. Burghfield Common is identified as a Rural Service Centre in Policy ADPP1 of the West Berkshire Core Strategy (the Core Strategy). Policy ADPP6 of the Core Strategy states that within the East Kennet Valley area it is intended to be the focus for development along with the other Rural Service Centre of Mortimer. …
13. Although it is intended that the majority of development will take place on previously developed land and development in the open countryside will be strictly controlled, the Core Strategy does not preclude development on greenfield sites and Policy ADPP6 recognises that development may take the form of small extensions to Burghfield Common, Mortimer and the service village of Woolhampton. Policy ADPP1 allows for development within or adjacent to settlements in the settlement hierarchy (which includes Burghfield Common).
14. Policy CS1 of the Core Strategy emphasizes that new homes will be located in accordance with the settlement hierarchy. Whilst it states that they will primarily be developed on land within settlement boundaries, strategic sites and broad locations in the Core Strategy and land allocated in subsequent development plan documents, Policy CS1 does not in itself specifically preclude development beyond existing settlement boundaries.
…
16. Policy HSG.1 of the West Berkshire District Local Plan (the Local Plan) was saved and continues to form part of the adopted development plan. It allows for new housing development within identified settlement boundaries. The appeal site is adjacent to but outside of the settlement boundary for Burghfield Common. The principle of housing development on the appeal site is contrary to Policy HSG.1 therefore. The appellant accepts that this is the case."
The West Berkshire Council July 2014 Housing Site Allocations DPD Preferred Options notes:
"4.3 The Core Strategy sets out a housing number of approximately 800 new homes for the East Kennet Valley between 2006 and 2026. At March 2013, approximately 270 remained to be identified and this number has been reduced further by permissions since then and by the inclusion of a modest windfall allowance. An element of flexibility is necessary however, in case houses cannot be delivered as planned elsewhere, specifically the Eastern area of the District.
4.4 The Core Strategy defines Burghfield Common and Mortimer as Rural Service Centres in this area, with Woolhampton and Aldermaston as Service Villages. There are not proposed to be any allocations in Aldermaston due to its proximity to AWE Aldermaston. Development is proposed in Burghfield Common, Mortimer and Woolhampton in the form of small extensions to these villages."
The Core Strategy was adopted on 16 July 2012. The planning application was submitted on 27 June 2014 and refused by notice dated 22 October 2014. The inquiry into the appeal was held on 2–10 June 2015. The decision letter is dated 6 July 2015.
Legal and policy framework
Appeal to the High Court under the 1990 Act, s.288
Section 288 of the 1990 Act provides for an appeal to the High Court against the decision of an inspector. The general principles of judicial review are applicable to a challenge under s.288. In Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) Lindblom J, as he then was, summarised at para 19 the relevant legal principles:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to 'rehearse every argument relating to each matter in every paragraph' (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the 'principal important controversial issues'. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and anr v Porter (No. 2) [2004] 1 WLR 1953 at p.1964 B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] thinks fit or no weight at all' (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for the Environment, Transport and Regions [2001] EWHC 74 Admin, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17–22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, in South Somerset District Council v Secretary of State for the Environment (1993) 66 P&CR 80, at p.83 E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea Land Power and Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ. Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, at paragraphs 12–14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, at p.145)."
Development plan and material considerations
Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, the local planning authority:
"… shall have regard to—
(a) the provisions of the development plan, so far as...
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