Wiltshire Council v Secretary of State for Communities and Local Government and Others Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 05 April 2015 |
| Neutral Citation | [2015] EWHC 1261 (Admin) |
| Date | 05 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/416/2015 & CO/627/2015 |
[2015] EWHC 1261 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BRISTOL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Patterson DBE
Case No: CO/416/2015 & CO/627/2015
In CO/416/2015:
In CO/627/2015:
and
Mr Hugh Richards (instructed by Wiltshire County Council) for the Claimant
Mr Graham Walters (instructed by Government Legal Department) for the First Defendant
CO/416/2015 only:
Mr Richard Kimblin (instructed by Osborne Clark) for the Second to Fourth Defendants
CO/627/2015 only:
No appearance or representation by the Second Defendant
Hearing date: 27 April 2015
Introduction
On 24 December 2014 Mr Gareth D Jones, an inspector appointed by the Secretary of State for Communities and Local Government, allowed an appeal by the second, third and fourth defendants against a decision of the claimant and granted planning permission for the erection of fifteen dwellings and associated works to the south of the village of Hilperton – Appeal A.
On 5 January 2015 Joanne Jones, an inspector appointed by the Secretary of State for Communities and Local Government, allowed an appeal by Mr Cooper against a decision of the claimant and granted planning permission to use an annex as independent living accommodation at The Chase, Church Street, Hilperton without complying with conditions attached to planning permission W/12/01877/FUL which restricted the use of the annex to purposes ancillary to the residential use of The Chase – Appeal B.
In both appeals the claimant challenges the decision letters on the basis that the inspectors omitted to consider a material consideration as part of their decision making process. What is alleged to be a material consideration by the claimant is the inspector's report into the emerging Wiltshire Core Strategy (EWCS) which was received by the claimant during the period of the inspectors' decision making.
Originally the claimant pursued a second ground of inadequate reasons on the part of both inspectors. That ground has not been proceeded with. I say nothing further about it.
The second to fourth defendants are developers in receipt of planning permission under Appeal A.
Mr Cooper, the appellant in Appeal B, did not appear and was not represented at the hearing before me although his wife was present at the proceedings.
Factual Background
Appeal A
The appeal proceeded by way of public inquiry held on 14 and 15 October 2014. The decision letter notes that:
i) Shortly before the inquiry the claimant conceded that it could not demonstrate a five year supply of housing land [paragraph 2];
ii) That the main issue was whether the proposal would be a sustainable form of housing development having particular regard to existing housing land supply policies, the need for housing sites in Wiltshire, the accessibility of the location, the effect on the character and appearance of the area and economic considerations [paragraph 4];
iii) In respect of housing delivery the National Planning Policy Framework (NPPF) required the Council to meet full objectively assessed needs for market and affordable housing in the housing market area. Applications for housing should be considered in the context of the presumption in favour of sustainable development and relevant policies for the supply of housing should be considered to be out-of-date if the Local Planning Authority could not demonstrate a five year supply of deliverable housing sites [paragraph 7];
iv) The EWCS was at an advanced stage of preparation with the examining inspector having held a final hearing session into two outstanding issues before reaching his conclusions on whether the EWCS was sound [paragraph 11];
v) Paragraphs 15 to 18 of the decision letter dealt with 'Housing Need'. They said:
"15. The evidence indicates that the full objective assessment of housing need (OAN) for the eWCS plan area and period is some 44,000 homes. In this respect my attention has been drawn to a recent appeal decision at land south of Abberd Lane, Calne, Wiltshire (Abberd Lane appeal). Having regard to that decision and the wider evidence before me, I have no good reason to disagree with the Abberd Lane appeal Inspector's assessment that the best estimate of OAN at present is 44,000.
16. While the eWCS is at an advanced stage, it has yet to be adopted. We are now some 3 years beyond the period for which the District Plan sought to meet the development needs of the Plan area. The Council accepts that it cannot demonstrate a Framework compliant supply of housing land. Through the eWCS it is planning to deliver at least 42,000 homes, some 2,000 below the full OAN.
17. The eWCS examining Inspector's 10 th Procedural Letter states that the evidence indicates a considerable need for various forms of affordable housing throughout Wiltshire. The evidence also indicates that there are issues associated with the delivery of affordable housing, including viability.
18. Therefore, although it is for only 15 dwellings, the proposed development would make an important contribution to identified housing need. For the reasons outlined, I find that the need for both market and affordable housing carries very significant weight in favour of the proposal."
vi) The inspector concluded that in terms of the economic and social dimensions of sustainable development the appeal proposal would be deliverable and increase the supply and choice of housing in an area where there was not a Framework compliant supply of housing land.
vii) In terms of the planning balance and the environmental dimension the development of the site would reduce the apparent separateness of the village core of Hilperton to the detriment of its existing character. That harm carried significant weight but was outweighed by matters in favour of the development which included the supply and choice of housing in the area [paragraph 46];
viii) Sometime before 12 November 2014 the claimant received a draft of the final report of the inspector who was examining its core strategy for factual consideration. That exercise was carried out and factual corrections sent to the Planning Inspectorate (PINS) on 12 November;
ix) On 1 December 2014 the claimant received the final report of the examining inspector into the Wiltshire Core Strategy. The covering letter from the Plan team included the following paragraph:
"The Council should consider whether adoption could have any effect on appeals currently being considered by the Planning Inspectorate. As you know, appeals must be determined on the basis of the development plan as it exists at the time of the Inspector's (or the Secretary of State's) decision, not as it was at the time of the Council's decision. If adoption changes the policy position, the relevant Inspector(s) will need to take that into account. In addition, please ensure that your new policy position is clearly explained when submitting your Questionnaire in relation to future appeals received after adoption."
Mr Wilmott, the Area Development Manager with the claimant, having read what he describes as critical parts of the EWCS inspector's report submitted it to the case officer for Appeal A at PINS under the cover of an email at 09.28 on 3 December 2014 requesting that publication of the report be brought to the attention of the inspector considering the appeal. The email said as follows:
"I am aware that the Public Inquiry concerning this appeal has now closed. However, the Council has now received and published the Final Report from the Planning Inspector into the Wiltshire Core Strategy, a copy of which is attached, together with his letter.
The letter advises consideration to be given to the effect on appeals currently being considered by the Inspectorate, of which this is one. I can advise that the Core Strategy is scheduled to be formally considered for adoption by the Council at a Special Full meeting of the Council on January 20 th 2015.
The Inspector has found the Wiltshire Core Strategy to be sound, and that an adequate five year supply of housing land has been demonstrated. He has considered that the minimum housing figure within the Core Strategy should reasonably equate to at least 42,000 homes over the plan period, and has endorsed the Council's proposed settlement hierarchy set out in policy CP1 and the Council's housing delivery strategy set out in policy CP2.
I would be grateful if you could bring the publication of this report to the attention of the Planning Inspector considering this appeal."
At 16.10 on 3 December the appeal inspector Gareth Jones emailed his decision letter on the appeal into the PINS Dispatch Team to enable PINS to go through its processes before issuing the decision letter.
On 8 December 2014 Mr Wilmott received a decision letter on another appeal at Aldbourne Road which made no reference to the final report on the emerging Core Strategy. On 9 December Mr Wilmott emailed PINS again expressing his concerns that "the Inspector has clearly not seen and not made any reference to the fact that the Inspector's report into the Wiltshire Core Strategy was issued on December 1 st, might have made her write certain aspects of the report differently". He made the point that he had emailed the report in on 3 December but thought that although it looked unfortunate no great harm was done. The appeal was dismissed. He continued "however, on the same day I sent a similar email with the Inspector's Report to Alison Bell, who is the case officer for a public inquiry we...
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