Wychavon District Council v Secretary of State for Communities and Local Government Crown House Developments Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 16 March 2016 |
| Neutral Citation | [2016] EWHC 592 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4348/2015 |
| Date | 16 March 2016 |
[2016] EWHC 592 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham B4 6DS
The Hon Mr Justice Coulson
Case No: CO/4348/2015
and
Sarah Clover (instructed by Legal Services, Wychavon DC) for the Claimant
The Defendant did not appear and was not represented
Jeremy Cahill QC and Thea Osmund-Smith (instructed by Harrison Clark Rickerbys) for the Interested Party
Hearing Date: 16 March 2016
INTRODUCTION
Pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), the claimant seeks to challenge the decision of a planning inspector dated 4 August 2015 by which the inspector allowed the appeal of the Interested Party ("IP") and granted planning permission for 32 dwellings at Walcot Meadow, Walcot Lane, Drakes Broughton, Pershore, Worcestershire. The defendant has conceded that the decision should be quashed but has chosen not to appear today and has not explained why or how he has reached that view. The IP, however, maintains that there is no basis on which the inspector's decision should be challenged.
I set out the relevant facts, including passages from the Appeal Decision in Section 2. I set out the relevant law in Section 3. In Section 4, I identify what I consider to be the correct approach in circumstances such as these. I then deal with the criticisms of the inspector in Section 5. In Section 6, I deal with the issue of discretion, namely whether, if the inspector is found to have made a material error, whether I consider that the inspector would still have come to the same decision. There is a short summary of my conclusions at Section 7 below. I am very grateful to both counsel for their clear and succinct submissions, which has enabled me to give judgment the same day.
THE RELEVANT FACTS
There was a relevant Local Plan, GD1. Under the heading 'Location Strategy for New Development', the Plan said:
"Most new development to 2011 will be accommodated within the main built-up areas of Droitwich Spa, Evesham and Pershore, with some in the villages; in all cases it will be within defined development boundaries and/or on allocated sites."
On 6 February 2014, the IP made an application for outline planning permission at the site, which lies outside the settlement boundary of Drakes Broughton (and was therefore in conflict with GD1). The claimant failed to determine that application so the IP appealed.
The inspector, Mr Michael Boniface, held a one day hearing on 21 July 2015, which was combined with a site visit. On 4 August 2015, he published his Decision Letter ('DL').
The inspector rightly recognised, at paragraph 4 of his DL, that the main issue was whether the site was a suitable location for the proposed residential development having regard to Policy GD1 and other considerations. At paragraph 5 the inspector noted that Policy GD1 set out a location strategy for new development in the area, which required that all development was to be within defined settlement boundaries. He noted that it was common ground that the proposed site was outside the settlement boundary for Drakes Broughton and was not an allocated site. He identified, therefore, that the proposed development was "in clear conflict with Policy GD1".
At paragraph 6, the inspector noted that the IP had argued that GD1 was out of date because the specified plan period had ended in 2011. But the inspector went on to reject that submission, saying that the policy was saved by virtue of a saving direction issued in 2009. He went on:
"6. …As such, it retains its full weight as part of the statutory development plan. Nevertheless, it is possible for the material considerations to outweigh the development plan and the policies and objectives of the National Planning Policy Framework are an important material consideration.
7. It was agreed during the Hearing that the principal of defining settlement boundaries is consistent with the Framework. I note an alliance with objectives to protect the countryside and promote sustainable patterns of development and the policy can be considered to be broadly consistent with those of the Framework. That said, it is not entirely consistent in that the boundaries and housing allocations were drawn up to address a housing need up to 2011. The Framework now seeks to boost significantly the supply of housing and this attracts substantial weight.
8. It is agreed between the parties that the Council can demonstrate a 5 year supply of deliverable housing sites as required by paragraph 47 of the Framework. Under these circumstances, the decision-taking criteria contained in paragraph 14 of the Framework are not engaged. Whilst this is so, the Framework seeks to boost significantly the supply of housing and the ability to demonstrate a 5 year housing land supply should not be seen as a maximum supply. Regardless of such a supply being available, the Framework advocates a presumption in favour of sustainable development and the application must be considered in these terms."
In paragraph 11 of the DL, the inspector referred to a recent appeal decision in which the inspector had concluded that there were no material considerations "that were sufficient to outweigh the development plan in that case". He went on:
"As I have set out above, this balancing exercise is a necessary part of the appeal process and I shall go on to make such an assessment below. Although paragraph 14 of the Framework sets out criteria for the application of development plan policies in decision taking it does not, in my view, alter the overarching presumption in favour of sustainable development."
Thereafter, having considered a range of detailed matters, such as ecology, heritage assets, flooding and the like, the inspector undertook the balancing exercise required by law. At paragraphs 39–41, he dealt with the three dimensions of sustainable development (economic, social and environmental) and found benefits under each three heads. He then went on:
"42. Overall, I conclude that the proposal would constitute sustainable development having regard to the policies of the Framework taken as a whole. In this instance, the benefits of development outweigh the limited harm that has been identified and these benefits are sufficient to outweigh the conflict with Policy GD1 of the LP. Therefore the Framework's presumption in favour of sustainable development applies."
On 10 September 2015, the claimant lodged its application to quash that Appeal Decision pursuant to s.288 of the 1990 Act. As already noted, the defendant has conceded that the appeal should be allowed and has not attended. The IP resists the appeal.
THE RELEVANT LAW
The Proper Approach to s.288
The relevant part of s.288 provides as follows:
" 288 Proceedings for questioning the validity of other orders, decisions and directions
(1) If any person—
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section.
…
(5) On any application under this section the High Court—
(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
The proper approach to such applications was set out at paragraph 19 of the judgment of Lindblom J (as he then was) in Bloor Homes East Midland Ltd v SSCLG [2014] EWHC 754 (Admin):
"19. The relevant law is not controversial. It comprises seven familiar 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. & C.R. 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...
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