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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sienkiewicz v South Somerset District Council & Ors  EWHC 3704 (Admin) (17 December 2015)
Cite as:  PTSR 815,  WLR(D) 553,  EWHC 3704 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|SOUTH SOMERSET DISTRICT COUNCIL
PROBIOTICS INTERNATIONAL LTD
Stephen Whale (instructed by SSDC) for the Defendant
Hearing dates: 3 and 4 November 2015
Crown Copyright ©
MR JUSTICE OUSELEY:
i) That the Council erred in concluding that the development was in accordance with the Development Plan properly interpreted and in the light of the decision of Lewis J. The Council had misinterpreted the National Planning Policy Framework, NPPF, and had ignored relevant emerging local plan policies. The Council was inconsistent in its decision making in the application of Development Plan policies, and had ignored relevant decisions. It was said that the Defendant ought have referred the application to the Secretary of State under the Town and Country Planning (Consultation) England Direction 2009, on a point put differently from that previously raised before Lewis J. Permission was granted to argue those four grounds.
ii) Permission was refused for the next two grounds, but they were before me on a renewed application for permission, to be dealt with as a rolled-up hearing. The Council had approached conditions wrongly. It failed to consider the need for conditions tying the development to Probiotics in view of the extent to which development was justified because of Probiotics needs; various tailpieces to 5 conditions permitting written variations were unlawful and did not achieve what they were intended to achieve in controlling the mix of development; informatives were written as if they were intended to be as effective as conditions but could not be. The Council ought to have provided a screening opinion that the development was EIA development under the EIA Regulations: it was admittedly a Schedule 2 development and in concluding that it was not EIA development because it was not likely to have significant environmental effects, the Council had ignored cumulative impact. The officer reaching the contrary screening opinion had no authority to reach that opinion for two separate reasons including a want of signature to an email.
Grounds 1 and 2: failing to decide lawfully whether the development accorded with the Development Plan
"In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."
"It is considered that saved policy ME4, whilst in general accordance with the thrust of the NPPF, is unnecessarily restrictive firstly in seeking to limit rural business expansion to small scale development and secondly in seeking to restrict such expansion outside development limits. This restrictive approach reduces its weight, whereas the Framework suggest a more permissive, impact focussed approach. Whilst ME4 requires a justification to be made for the development, para. 28 places no such obligation on applicants. Rather there is a need to consider proposals for rural economic development in light of the 'Golden Thread' of sustainability which runs through the Framework, the implication being that if a proposal is 'sustainable' an application specific justification is of less importance.
Whilst emerging policy EP4 seeks to facilitate rural business expansion, it also requires the need for the development to be justified, with the further requirement that businesses need to have been operating successfully for a minimum of 3 years and to be viable.
The applicant is a long standing local business that has been at Lopenhead for approximately 3 years and was located in Stoke-sub-Hamdon before that. Information submitted with the application and considered by the economic development officer show a need for the additional building to separate animal and human products as demanded by important markets for the applicant. It is accepted that there are good reasons why the applicant would want to expand at the existing site rather than move to a split site operation.
Whilst EP4 is a draft policy within the emerging plan and as such is afforded little weight. As with saved policy ME4 it should be considered in the context of the permissive approach advocated by para. 28 of the NPPF.
Accordingly the key issue for paragraph 28 is the sustainability of the development in which respect the NPPF outlines 3 dimensions to sustainable development – economic, social and environmental. On this basis it is considered that the principle of the expansion of this rural business on this site is acceptable subject to consideration of the sustainability of and impacts of the proposal."
"The Need for an Environmental Impact Assessment – Notwithstanding the continuing assertion that an EIA should be provided, the proposal has been thoroughly screened by both the local planning authority and the Secretary of State with the conclusion that a formal EIA is not required. This issue formed part of the legal challenge and it was concluded that there is no justification for a challenge.
Nevertheless it has been considered prudent to revisit the screening process…. This brings together all aspects of the proposal, the supporting information and the objector's concerns. It is concluded that:-
… Having very carefully scrutinised the relevant material, and reconsidered its original screening opinion, the Council considers that the proposed new building and its use is not likely to have significant effects on the environment whether looked at in isolation or cumulatively with other development."
"It is difficult to envisage how any impact resulting from the building would be mitigated in any different way by tying its occupation to either the applicant or another user of the adjoining site. The impacts on visual amenity, landscape, drainage, ecology etc. would not materially alter as a result of a change of occupier and technical changes would be picked up by other legislation, e.g. environmental permits, wildlife protection legislation. Obviously planning permission would be needed for any changes of use.
On the basis that the application is acceptable in planning terms it is considered that a personal condition is not justified in this instance and would serve no valid planning purposed and would be clearly contrary to guidance."
"It is accepted that there are on-going concerns regarding the allocation of the adjacent site for employment uses and its subsequent development. Nevertheless this is now 'water under the bridge'; the site has been allocated and built out. The time for challenge to previous decisions is now long past.
The council is presented with a well-supported application for further substantial building on adjacent land to enable the existing user of the site to expand. The application falls to be determined on the basis of whether or not it complies with the saved policies of the 2006 local plan and the policies contained within the NPPF. Policy ME4 of the 2006 local plan only supports 'small scale' expansion of rural business, which is inconsistent with the NPPF, and as such its weight is reduced.
In light of the considerations set out above it is concluded that this is sustainable development that would have no significant adverse impact on landscape character, visual amenity, ecology, water quality residential amenity, the support of the best and most versatile agricultural land or ecology, nor would it have a severe impact on highways safety. The proposal is therefore recommended for approval."
"It was common for relevant development plan policies to pull in different directions with respect to planning applications. SSDC had to make a judgment as to whether the proposal was in accordance with the development plan taken as a whole. Officers judge that it was. Moreover, officers judged that the NPPF (an important material consideration) indicated that planning permission should be granted in any event."
"Environmental Impact Assessment: SSDC concluded prior to the High Court proceedings that the application did not amount to EIA development. The Secretary of State agreed (twice). The Court rejected the challenge on this issue. SSDC had comprehensively reconsidered the issue afresh. It had considered the proposal in isolation and cumulatively. Officers remained of the view that the proposal did not represent EIA development."
"…that it was accepted that the site was outside of the existing allocation and outside any identified settlement in the saved Plan. However, it adjoined the allocated site and was a former horticultural site, and it was not considered to be objectionable in principle, subject to considerations as to scale and whether the other points as listed, were on balance acceptable.
In terms of sustainability it allowed for expansion of an existing employment site and an existing user on that site, providing rural jobs for people who live in the countryside. In terms of justification for the sustainability decision recommended to members, the applicant had provided clear evidence as to their on-going business plan, why they need to the additional works space. The applicant was a local company who had started in Stoke sub Hamdon and had moved to the site with a history of operating outside major settlements. No fundamental sustainability issues were seen that would prevent them continuing to do so on their new site.
In terms of justification the applicant had supplied all the evidence that SSDC could reasonably ask for to demonstrate that this was not a speculative application and was to meet the applicant's needs. It was not seen that, on the basis of consideration of those other issues, that a personal condition or any kind of personal limitation was necessary to make the development acceptable in planning terms because, going on to consider the landscape and visual issues, an objector's point that the development was fundamentally objectionable was not accepted. SSDC's landscape architect had looked at it in great detail. The site was already there and it had been accepted that it could be developed, permissions had been granted with conditions for landscaping.
The Area Lead referred to the previous decision and explained that members needed to be satisfied as to whether there had been any material changes in circumstance that justified a full reconsideration of this application and potentially a different decision. He referred to a lengthy report (and to his appended earlier officer's report by way of background) and said that it considered this in terms of all those points and there had been no fundamental changes in circumstance. The Area Lead did not believe a personal condition was necessary to make the application acceptable. He did not believe that there was a justification to withhold planning permission. The officer recommendation was for approval subject to the change to condition 12 to include floor plans (ground floor plan 004B and first floor plans 005A)."
"Notwithstanding local concerns, and in light of reasonable mitigation measures in the form of landscape planting and the external treatment of the building, the benefits of the proposed development in terms of employment opportunities and the contribution to the rural economy stemming from the expansion of an established business on its existing site, would outweigh any visual or landscape impacts. The scheme, for which a reasonable justification has been made, will provide a satisfactory means of vehicular access and adequate drainage without detriment to ecology, residential amenity or water quality. As such the scheme accords with saved policies ST5, ST6, EC3, EP1, EU4, EC8, TP2 of the South Somerset Local Plan. It is in accordance with the Development Plan taken as a whole, notwithstanding policy ME4, and the policies contained within the NPPF."
The Submissions on Grounds 1 and 2
Conclusions on Grounds 1 and 2
Ground 3: inconsistency with other decisions
Ground 4: The Town and Country Planning (Consultation) (England) Direction 2009
"(1) For the purposes of this direction, "development outside town centres" means development which consists of or includes retail, leisure or office use, and which –"
(a) is to be carried out on land which is edge-of-centre, out-of-centre or out-of-town; and
(b) is not in accordance with one or more provisions of the development plan in force in relation to the area in which the development is to be carried out; and
(c) consists of or includes the provision of a building or buildings where the floor space to be created by the development is:
(i) 5,000 square metres or more; or
(ii) extensions or new development of 2,500 square metres or more which, when aggregated with existing floor space, would exceed 5,000 square metres.
(2) In calculating the area of existing floor space for the purposes of development referred to in paragraph 5(1)(c)(ii) this shall include retail, leisure or office floor space situated within a 1 kilometre radius of any part of the same type of use to be comprised in the proposed development…."
Ground 5: Conditions
"You are reminded that there should be no discharge of foul or contaminated drainage from the site into either groundwater or any surface waters, whether direct to watercourses or via soakaways/ditches. Prior to being discharged into any watercourse, surface water sewer or soakaway system, all surface water drainage from parking areas and hardstandings should be passed through trapped gullies with an overall capacity compatible with the site being drained."
Ground 6a: The need for Environmental Impact Assessment
"The court clearly was able to disapply a particular provision of the Regulations if that provision was inconsistent with the Directive which it purported to implement. It was necessary to look at the effect of any modification on the project or on the development, and to see whether the whole, as modified, had or was likely to have other effects which needed to be taken into account and could require an EIA, albeit that they did not fall themselves within the criteria which had been adopted b the Member state. It was plain beyond any peradventure that it was not appropriate, in the light of the jurisprudence of the European Court of Justice and the purpose behind the Directive, to regard only the modification itself and not the effect on the development as a while of any such modification to it."
Ground 6b: Delegation
"Under the terms of Section 6 of the Council's adopted Scheme of Delegation I hereby authorise you to carry out, on my behalf, the functions allocated to you in the attached delegation table."
Underneath was typed "Simon Gale, Assistant Director (Economy)".