Woodcock Holdings Ltd v Secretary of State for Communities and Local Government (First Defendant) Mid-Sussex District Council (Second Defendant)

JurisdictionEngland & Wales
JudgeMr. Justice Holgate
Judgment Date01 May 2015
Neutral Citation[2015] EWHC 1173 (Admin)
Docket NumberCase No: CO/4594/2014
CourtQueen's Bench Division (Administrative Court)
Date01 May 2015

[2015] EWHC 1173 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Holgate

Case No: CO/4594/2014

Between:
Woodcock Holdings Limited
Claimant
and
Secretary of State for Communities and Local Government
First Defendant
Mid-Sussex District Council
Second Defendant

Christopher Boyle Q.C. (instructed by Russell-Cooke LLP) for the Claimant

Richard Honey (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 25th and 26th February

Mr. Justice Holgate

Introduction

1

The Claimant, Woodcock Holdings Limited, challenges under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") the decision of the First Defendant, the Secretary of State for Communities and Local Government, dated 4 September 2014 to dismiss its appeal against the refusal by the Second Defendant, Mid-Sussex District Council ("the Council"), of outline planning permission for 120 dwellings, community facility/office space, care home and retail units, at Kingsland Laines, Reeds Lane/London Road, Sayers Common, West Sussex.

2

The Claimant's appeal was heard by an Inspector at a planning inquiry between 8 and 11 October 2013. Originally, the Inspector was going to determine the matter. However, by a letter to the parties from the Planning Inspectorate ("PINS") dated 1 November 2013, the Secretary of State directed that he would decide the appeal himself because it "involves proposals which raised important or novel issues of development control, and/or legal difficulties". The letter did not explain what those issues or legal difficulties might be.

3

The Inspector produced a report to the Secretary of State dated 6 January 2014 in which she firmly recommended that the appeal be allowed and planning permission granted subject to conditions. However, although in his decision letter 1 the Secretary of State agreed with the Inspector's assessment of the merits of the proposal, he dismissed the appeal because the proposal conflicted with, and was premature in relation to, the emerging Hurstpierpoint and Sayers Common 2031 Neighbourhood Plan ("the Neighbourhood Plan") prepared by Hurstpierpoint and Sayers Common Parish Council ("the Parish Council").

4

The appeal site comprises 5.85 hectares of land on the north-western edge of Sayers Common. The southern part of the site contains a large detached house, Kingston Laines and its associated gardens and outbuildings, including stables. The remainder of the site comprises open fields used as paddocks and pasture (IR 2.2). The south western corner of the site abuts existing properties and a recreation ground. To the east, the site abuts residential properties and their gardens. To the west lies a wet woodland area and to the north open land rising in shallow terraces towards a former priory, now occupied by a "specialist education centre" (IR 2.3).

The issues at the public inquiry into the appeal

5

The Council refused the application on five grounds covering (1) the effect of the scheme on the setting of a Grade II listed building (a pair of semi-detached cottages known as Aymers and Sayers), (2) surface water drainage and flooding, (3) the sustainability of the location, (4) the impact of the proposal on highways and (5) the effect of the proposal upon local infrastructure, services and facilities.

6

By the time the inquiry opened, the Council had withdrawn reasons for refusal (3) to (5), including the objection to the sustainability of the location for housing (IR 1.5). The highway objection had been overcome as a result of additional survey work. The contributions from the development contained in a section 106 agreement removed the Council's concerns over the sustainability of the location and effects upon local infrastructure and services (footnote 5 at IR 1.5). That agreement secured the contributions sought by the Council and West Sussex County Council in relation to matters such as education facilities, libraries, children's play space, formal and informal sports facilities and community buildings. The contribution towards community buildings was to be used towards extending and improving the village hall or replacement facilities. The section 106 agreement also required 30% of the residential units to be provided as affordable housing according to a mix of tenure agreed with the Council (IR 11.9 to 11.13). The Inspector concluded that the contributions and obligations secured by the agreement complied with Regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010 No. 948) (IR 11.16). The Defendant accepted that conclusion (DL 18).

7

Accordingly, at the start of the inquiry the Council was relying upon only the first two of its reasons for refusal, the listed building and drainage/flooding issues. It was represented by Counsel and called two experts on these subjects. However, following cross-examination, the Council confirmed that it was no longer pursuing its opposition in relation to either matter and no longer opposed the grant of planning permission (IR 1.5).

8

Consequently, opposition to the scheme at the inquiry was led by the Parish Council, supported by a number of local residents. The Parish Council's case was set out in section 7 of the Inspector's report. In summary, its main objections concerned effect upon the setting of the listed building, the non-sustainability of the location owing to the inadequate range of services in the village and nearby, and adverse effect upon the character of the settlement. The Parish Council also relied upon its draft Neighbourhood Plan (IR 4.13, 8.27 and 9.1).

9

The Inspector's summary of the Statement of Common Ground agreed between the Claimant and the District Council (IR 5.1) included the following important points which supported the appeal:

(i) The Council is unable to demonstrate a five year supply of housing land, the agreed supply lying between 1.82 and 2.35 years;

(ii) There is a demonstrable housing need within the Parish;

(iii) The site can be drained satisfactorily and will not be at risk of flooding or increase the risk of flooding elsewhere;

(iv) "The site is in a sustainable location for housing, with good access to a range of local facilities and services". The section 106 agreement had addressed the Council's concern;

(v) "Although the development would encroach into countryside on the edge of the village, the site is well contained and there would be no unacceptable landscape or visual impacts";

(vi) "The proposed residential density of 25 dwellings per hectare is appropriate, given the surrounding pattern of development";

(vii) "Taking account of the proposed community and retail facilities proposed, the level of development is appropriate in the context of the village of Sayers Common";

(viii) Subject to the planning obligation, the appeal scheme would deliver all necessary infrastructure.

10

In paragraph 4.15 of the Statement of Common Ground it was also agreed that:-

"It is common ground that only limited weight can be attributed to [the draft Neighbourhood Plan], as it has not been examined or subject to referendum (likely to be Autumn 2013), and it maybe subject to considerable change. Consequently, at this time the appeal proposal must be assessed against the Development Plan and relevant material planning considerations, including the Council's lack of a five year housing land supply of deliverable housing sites."

In IR 12.46 the Inspector concluded that, applying the principles in paragraph 216 of the National Planning Policy Framework, "relatively limited weight can be given to the [draft Neighbourhood Plan], since its adoption process still has quite a way to go, and it could be that its policies change along the way" (see also IR 4.13 to like effect).

The procedure followed between the inquiry and the decision letter

11

In view of the Council's withdrawal of its objections to the proposal and its substantial agreement with the merits of the scheme, the Defendant's letter of 1 November 2013 recovering the determination of the appeal from the Inspector, came as a surprise to the Claimant. The planning consultant acting for the Claimant, Mr. Tim Rodway, sent an email to PINS asking why the Defendant had recovered the appeal for his own determination.

12

The reply from PINS dated 19 November 2013 merely stated that "the important and novel issue of development control is the interaction of the appeal with the emerging neighbourhood plan for Hurstpierpoint which is at a relatively advanced stage." On 22 November 2013 PINS announced that the Defendant would issue his decision letter by 8 April 2014.

13

On 22 November 2013 Mr. Rodway sent a further email stating that the proposal had not been refused on prematurity grounds and the main parties to the appeal had agreed that the principle of housing on the appeal site was acceptable, taking into account the lack of a 5 year housing land supply within Mid-Sussex District. He added that because the two site-specific objections had been resolved, the Council was no longer resisting the appeal.

14

On 6 March 2014 the Secretary of State published for the first time national Planning Practice Guidance ("PPG") to supplement the National Planning Policy Framework ("NPPF") which had been published on 27 March 2012. The PPG gave guidance on the subject of prematurity in relation to emerging development plans, including neighbourhood plans

15

It appears that in a letter to the parties dated 20 January 2014 (which is not before the Court) the Secretary of State announced that he would not...

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