Wood v Secretary of State for Communities and Local Government (First Defendant) Gravesham Borough Council (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Judge Mackie |
| Judgment Date | 19 February 2014 |
| Neutral Citation | [2014] EWHC 683 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7432/2013 |
| Date | 19 February 2014 |
[2014] EWHC 683 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Mackie
Sitting as a Judge of the High Court
CO/7432/2013
Mr R Turney (instructed by Kingsley Smith) appeared on behalf of the Claimant
The First Defendant did not appear and was not represented
Mr J Lopez (instructed by Sharpe Pritchard) appeared on behalf of the Second Defendant
This is an appeal under s.288 of the Town and Country Planning Act 1990 against the decision of a Planning Inspector appointed by the Secretary of State.
Mr Turney appears for the Claimant, Mr Julian Wood. Mr Lopez appears for the Second Defendant, Gravesham Borough Council. The First Defendant, the Secretary of State, is not represented because it agreed a consent order by which this appeal would be allowed on Ground 2.
The grounds of the appeal are twofold. First, the Claimant says that there was a failure properly to apply Green Belt policies. Secondly, that there was a failure properly to consider housing land supply shortfall.
Much of the discussion in this case turns around the National Planning Policy Framework, known in argument as the NPPF, as I will refer to it from now on.
The Claimant made a planning application on 7 August 2012. This was refused on 25 September 2012 and the Inspector reached a decision on 8 May after making a site visit on 16 April.
The application is for outline permission to construct a two-storey detached dwelling and garage on land adjoining the See-Ho Public House, Pear Tree Lane, Shorne, Gravesend. The location of the site is described in the decision letter as follows:
"The appeal site is located on the south side of Pear Tree Lane and comprises a plot of open land adjacent to the car park of a public house. It is surrounded on all sides by housing, and is bounded by conifer hedges and timber fencing. To the west and south is a continuously built up area, while to the east it adjoins a line of detached properties extending out into the countryside. On the opposite side of the road is a row of similar bungalows … on deep plots behind which are open fields."
It is common ground that the site is in the Green Belt and outside the Shorne Village boundary, defined in the Gravesham Local Plan Final Review 1994 of the local plan.
The grounds of refusal for the proposed development were given by the Second Defendant as follows:
"The proposed development will constitute inappropriate and unsustainable development in the Green Belt, intensifying existing sporadic residential development in a semi-rural area and distorting the definition between the village envelope and surrounding countryside. This would be detrimental to the character of the area and therefore contrary to policies TC1 and GB1 of the Gravesham Local Plan 1994."
During the course of his inquiry the Inspector invited submissions on the implications of the substantial revocation of the South East Regional Strategy. This resulted in communications both from the Claimant and from the Second Defendant. In a document headed "The Implications of the Revocation of the South East Plan", the Claimant's advisers discussed the NPPF in the following terms:
"Following the publication of the National Planning Policy Framework … in March 2012, local authorities were allowed one year in which to produce local plans and other Development Plan Documents in accordance with the Framework. During that one year period, local authorities were still allowed to use their own planning documents, provided that they had been adopted since 2004. Many councils in the south east had already, or were in the process of, producing plans based on the policies of the South East Plan. However, as that year has now passed, and the SEP has substantially been revoked, it cannot simply be used as the basis for plan making."
The Claimant then made submissions, including that any plan must be assessed on an adequate and up-to-date evidence basis.
The Claimant's adviser, Mr Court, said this about Gravesham:
"Gravesham's draft Local Plan Core Strategy, that was published in December 2012, does not accord with any of these requirements. In particular, it proposes a housing provision of some 4,600 dwellings, which was approximately half of that required under the South East Plan. This proposed provision has not been based upon any objective assessment of the Borough's housing needs. Instead, it comprises a figure that has been chosen because it is politically acceptable. Indeed, by way of comparison, the government's projections for the period of the South East Plan, namely 2006–2026, show that 8,000 households will form in that 20 year period. This forecast should therefore form the basis of Gravesham's objective assessment of its housing requirements."
The Second Defendant prepared a document which, like all these documents, has to be seen as a whole and in context, but I will refer simply to two paragraphs:
"6. The draft Strategic Land Availability Assessment … addendum October 2011 shows that the Council cannot currently demonstrate a five year supply of housing land against its current requirement as defined in the South East Plan of 9,300 from 2006 to 2026. This South East Plan requirement was a significant oversupply against a need of approximately 4,000 dwellings. The emerging Core Strategy … will contain a requirement for 4,600 dwellings from 2011 to 2028. The SLAA, to accompany the proposed submission stage Core Strategy, will identify how this requirement is being met.
7. In determining applications, the Council must balance its housing supply with other relevant material considerations. While it is acknowledged that a dwelling on this site could count towards a windfall site in any future SLAA, paragraph 14 is quite clear that planning permission should not be granted if the adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework. The harm to the Green Belt and character of the area outweighs the benefits in this case."
The evidence before the court consists of a witness statement from the Claimant's solicitor, helpfully exhibiting the relevant documents. There is also a substantial witness statement and exhibits from Miss Wendy Lane, a principal planner at Gravesham. This came in late. It came in late because the First Defendant only decided, quite late, not to resist the Claimant's application in this case. So it is not Gravesham's fault that the witness statement is late.
The witness statement contains some purely factual material which is both helpful and uncontroversial, but it also contains material that was not before the Inspector as such but was referred to or was allegedly capable of being accessed by him. There is no indication that he did access it. This led, understandably, to a request by the Claimant to put in yet further material to substantiate and corroborate observations that had been made in the course of the process.
I have disregarded all the material criticised by the Claimant's counsel and it is for that reason that I also declined to admit the material which he had with him, ready to seek to refute what Gravesham was seeking to say.
I turn next to the legal framework against which this application has to be considered. S.70 of the Town and Country Planning Act requires that a planning authority and the Secretary of State on appeal shall have regard to "the provisions of the development plan, so far as material to the application" and to any other material considerations.
By s.38(6) of the Planning and Compulsory Purchase Act 2004:
"If regard is to be had to the development plan for the purpose of any determination … the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"Material considerations" include national planning policy, as we shall see.
Section 38(3) of the 2004 Act defines the development plan to include "regional strategy for a region in which the area is situated", as it were as local plans. It is common ground that a s.288 appeal such as this is not an opportunity to contest planning judgment, merits, relevance and weight. That is exclusively for the planning decision-maker. Further, this is not a case where any Wednesbury unreasonableness is alleged against the Defendant. It is common ground, as I say, that the NPPF is a material consideration, as is made explicit in a decision of Lewis J in Sienkiewicz, where at 29 he says this:
"It is correct that the Framework cannot change the development plan. [I should say the Framework is, of course, the NPPF.] The Framework is, however, a material consideration and may provide the reasons why an application for planning permission should be granted notwithstanding the development plan."
He makes further observations about that which I bear in mind.
The weight to be given to a material consideration is also a question of planning judgment. That, too, is common ground. I also bear in mind that planning documents are not statutes and have to be read in a broader way, as explained in the judgment of Lord Reed in Tesco Stores Ltd v Dundee City Council, where he also points out that policy statements must be read objectively, not simply as the planning authority pleases.
I turn next to the policy framework, which in...
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Julian Wood (Claimant/Appellant) v The Secretary of State for Communities and Local Government (First Defendant) Gravesham Borough Council (Second Defendant/Respondent)
...Gravesend. 2 The application under section 288 was made on two grounds which the judge summarised in paragraph 3 of his judgment ( [2014] EWHC 683 (Admin)). 3 In his first ground of appeal the appellant contended that the inspector had failed properly to apply the policy in paragraph 89 of......