Worthing Borough Council v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 01 August 2022 |
| Neutral Citation | [2022] EWHC 2044 (Admin) |
| Docket Number | Case No: CO/1221/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2044 (Admin)
Mrs Justice Lang DBE
Case No: CO/1221/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Isabella Tafur and Daisy Noble (instructed by Sharpe Pritchard LLP) for the Claimant
Hugh Flanagan (instructed by the Government Legal Department) for the First Defendant
Paul Cairnes QC and James Corbet Burcher (instructed by Shoosmiths LLP) for the Second Defendant
Hearing dates: 20 & 21 July 2022
Approved Judgment
The Claimant (“the Council”) applies, pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), for a statutory review of the decision of an Inspector, appointed by the First Defendant, on 25 February 2022, in which he allowed the appeal of the Second Defendant (“the developer”) against the Council's refusal of outline planning permission, for a mixed use development on land north west of Goring Station, Goring-by-Sea (“Goring”), Worthing, West Sussex (“the Site”).
I granted permission, on the papers, for the claim to proceed, on 9 May 2022.
Grounds of challenge
The Council submits that the Inspector erred in the following respects:
i) In his treatment of the impact of the development on the gap between the settlements of Goring and Ferring, specifically in failing to provide adequate reasons in respect of those impacts or consequent assessment of the development against Policy SS5 of the emerging Local Plan (“eLP”).
ii) In failing to take account of the conflict with Policies SS1 and SS4 of the eLP and/or failing to provide adequate reasons as to the assessment of the development against those policies or the weight to attribute to any conflict.
iii) In failing to take account of a material consideration, namely the reasons for the absence of a specific gap designation in the adopted development plan.
iv) In his treatment of the impacts of the development on the South Downs National Park (“the National Park”), specifically in failing to comply with his duty in section 11A of the National Parks and Access to Countryside Act 1949 (“the 1949 Act”) and/or paragraph 176 of the National Planning Policy Framework (“the Framework”); and/or in failing to provide adequate reasons and/or reaching an irrational conclusion in respect of the impact of the development on the National Park.
Planning history
The Site is 19.96 hectares (ha) in size (just under 50 acres). It currently forms part of Chatsmore Farm, which covers 30 ha (about 74 acres) in total, and is owned by the developer. There is a watercourse, called the Ferring Rife, which runs horizontally across Chatsmore Farm; the Site lies to the south of Ferring Rife. The Site is currently in agricultural use, and comprises an open field. Significantly for planning purposes, the Site lies outside the built-up area boundary in the Worthing Core Strategy 2011 (“WCS”) and the eLP.
The Site's eastern boundary is adjacent to Goring railway station and the built-up area of Goring. It is bordered along its southern boundary by a railway line. It is within the setting of the National Park, which lies beyond the northern boundary of Chatsmore Farm, separated by the A259 Littlehampton Road. Land beyond the Site's western boundary falls outside the administrative area of Worthing, and forms part of the village of Ferring, in the district of Arun. This includes a parcel of open land which is part of Chatsmore Farm, but not part of the Site.
On 10 August 2020, the developer applied for outline planning permission, with all matters of detail reserved, for development as follows:
“Mixed use development comprising up to 475 dwellings along with associated access, internal roads and footpaths, car parking, public open space, landscaping, local centre (uses including A1, A2, A3, A4, A5, D1, D2, as proposed to be amended to use classes E, F and Sui Generis) with associated car parking, car parking for the adjacent railway station, undergrounding of overhead HV cables and other supporting infrastructure and utilities”
The Council refused planning permission on 1 March 2021, for six reasons. For the purposes of this claim, the material reasons were as follows:
“01. The proposed development is outside of the built-up area as defined in the Worthing Core Strategy and the emerging Submission Draft Worthing Local Plan and is not allocated for residential development. The proposal is therefore contrary to policy 13 of the Worthing Core Strategy and emerging policies SS4, SS5 and SS6 of the Submission Draft Worthing Local Plan, resulting in the coalescence of settlements and the loss of an important area of green space that contributes to local amenity, sense of place and wildlife. Furthermore, it is considered that the adverse impacts of the development would demonstrably outweigh the benefits as substantial adverse landscape and visual effects would arise from the development affecting the local area and the wider landscape, including the landscape setting to the National Park (therefore adversely affecting its statutory purpose to conserve and enhance its natural beauty and cultural heritage), Highdown Hill scheduled Monument and the Conservation Area.
02. The application is considered to be premature as the development proposed is so substantial, and its cumulative effect would be so significant, that to grant permission would undermine the plan-making process in particular its overall spatial strategy about the location of new development, its landscape evidence and proposed green space designations that are central to the emerging Submission Draft Worthing Local Plan. The proposal therefore fails to comply with paragraph 49 of the National Planning Policy Framework.”
Policies
Development in Worthing is tightly constrained by the National Park to the north and the sea to the south. The coastal plain between Brighton (to the west) and Chichester (to the east) is densely developed. The WCS identifies four areas of open countryside (two to the east and two to the west of Worthing town) which “represent long established breaks in development between settlements” and are highly valued (WCS, paragraphs 2.3, 3.10 of the explanatory text). This Site is one of those four areas. It was a designated gap in the West Sussex Structure Plan (2004) and the previous Local Plan, but the WCS adopted a general countryside policy instead of gap policies. That reflected the prevailing guidance and practice at the time (see the Inspectors' Panel Report dated 6 August 2007 on the draft of the South East Plan 2009).
Policy 13 of the WCS forms part of the Council's development strategy under the section titled “Sustainable Environment”, and it contributes to the strategic objectives set out in paragraphs 8.1 and 8.2 of the explanatory text, including conserving and enhancing the natural environment. Policy 13 provides, so far as is material:
“ Policy 13
The Natural Environment and Landscape Character
Worthing's development strategy is that new development needs can be met within the existing built up area boundary and, with the exception of the West Durrington strategic allocation, will be delivered on previously developed sites, therefore:
• Residential development outside of the existing built up area boundary will only be considered as part of a borough-wide housing land review if there is a proven under-delivery of housing within the Core Strategy period.
• Other proposals that support countryside based uses, such as agriculture and informal recreation may be considered if they are deemed essential and/or can contribute to the delivery of the wider strategic objectives. If development in these areas is proposed it must take into account and mitigate against any adverse effects on visual and landscape sensitivity.
……”
The Council intends to replace the WCS with the new Worthing Local Plan in the near future. The eLP underwent public examination in November 2021, following which the Local Plan Inspector (“LP Inspector”) issued a post-hearing advice letter on 9 December 2021, identifying the steps required to make the eLP sound and legally compliant. As at the date of the Inspector's decision, the steps that remained to be taken were drawing up the schedule of main modifications, based on the post-advice hearing letter; the Inspector's final report; and the adoption of the modified plan by the Council, if it so chooses.
It was agreed between the parties at the appeal, in the Statement of Common Ground, that the relevant policies in the eLP were Policies SS1, SS4, SS5 and SS6.
The overall strategy is set out in Policy SS1 which provides:
“ SS1 SPATIAL STRATEGY
Up to 2036 delivery of new development in Worthing will be managed as follows:
The Local Plan will:
a) seek to provide for the needs of local communities and balance the impact of growth through the protection and enhancement of local services and (where appropriate) the safeguarding of employment sites, leisure uses, community facilities, valued green/open spaces and natural resources;
b) help to deliver wider regeneration objectives, particularly in the town centre and seafront, through the allocation of key urban sites;
c) seek to increase the rate of housing delivery from small sites.
d) The strategy for different parts of the Borough is as follows:
i) Land within the Built Up Area Boundary — development will be permitted subject to compliance with other policies in the Local Plan. Development should make efficient use of previously developed land but the density of development should be appropriate for its proposed use and also relate well to the surrounding uses and the character of the area. Within the existing...
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