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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 >> Forest of Dean District Council v Secretary of State for Communities & Local Government & Anor  EWHC 421 (Admin) (04 March 2016)
Cite as:  EWHC 421 (Admin),  PTSR 1031,  WLR(D) 128
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QUEEN'S BENCH DIVISION
Redcliff Street, Bristol, BS1 6GR.
B e f o r e :
| Forest of Dean District Council
|- and -
|Secretary of State for Communities
and Local Government
- and -
Gladman Developments Ltd
Mr Gwion Lewis (instructed by Treasury Solicitor) for the First Defendant
Mr David Elvin QC and Mr Peter Goatley
(instructed by Irwin Mitchell LLP) for the Second Defendant
Hearing date: 23 February 2016
Crown Copyright ©
The Hon. Mr Justice Coulson:
(1) Failing to consider and give reasons as to whether the site was a 'valued landscape';
(2) Incorrectly applying the National Planning Policy Framework ("NPPF") at paragraph 134 and the test on harm to heritage assets;
(3) Failing to consider the interaction between paragraph 134 and paragraph 14 of the NPPF and therefore applying the wrong test;
(4) Inadequate reasoning.
2. THE RELEVANT LEGAL PRINCIPLES
"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.
(2) Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the High Court under this section.
(3) An application under this section must be made within six weeks from the date on which the order is confirmed (or, in the case of an order under section 97 which takes effect under section 99 without confirmation, the date on which it takes effect) or, as the case may be, the date on which the action is taken.
(4) This section applies to any such order as is mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State as is mentioned in subsection (3) of that 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."
I note that this claim was brought under the unamended provisions of the 1990 Act, pursuant to which permission to make the application is not required. Thus the case proceeded directly to a substantive hearing. The amended s.288 only applies to decisions taken on or after 26 October 2015.
"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 issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2)  1 WLR 1953 , at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment  1 WLR 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for  EWHC Admin 74 , at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council  PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government  EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government  1 P. & C.R. 6 , at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment  65 P. & C.R. 137, at p.145)."
(a) Paragraph 14:
"At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For plan-making this means that:
- local planning authorities should positively seek opportunities to meet the development needs of their area;
- Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted.
For decision-taking this means:
- approving development proposals that accord with the development plan without delay; and
- where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted.9"
It is this second bullet point under 'decision-taking' that matters for the purposes of this case. Of the two alternatives applicable where the development plan is absent, silent or relevant policies are out-of-date, the first ("any adverse impacts…") was referred to at the hearing as Limb 1. The second, ("Specific policies…") was referred to as Limb 2.
(b) Paragraph 49:
"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."
(c) Paragraphs dealing with conserving and enhancing the historic environment, including:
"126. Local planning authorities should set out in their Local Plan a positive strategy for the conservation and enjoyment of the historic environment, including heritage assets most at risk through neglect, decay or other threats. In doing so, they should recognise that heritage assets are an irreplaceable resource and conserve them in a manner appropriate to their significance. In developing this strategy, local planning authorities should take into account:
- the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
- the wider social, cultural, economic and environmental benefits that conservation of the historic environment can bring;
- the desirability of new development making a positive contribution to local character and distinctiveness; and
- opportunities to draw on the contribution made by the historic environment to the character of a place.
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:
- the nature of the heritage asset prevents all reasonable uses of the site; and
- no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; and
- conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and
- the harm or loss is outweighed by the benefit of bringing the site back into use.
134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."
"13. Paragraph 90 of the NPPF is a policy statement which, in accordance with basic principle, "should be interpreted objectively in accordance with the language used, read as always in its proper context" (per Lord Reed JSC in Tesco Stores Ltd.
15. On the face of it, the NPPF is a stand-alone document which should be interpreted within its own terms. It even contains a glossary (Annex 2) which explains familiar planning terms such as "local plan" and "planning condition", cross-referring as appropriate to legislation…"
"There is a sequential approach in paragraphs 132-4 which addresses the significance in planning terms of the effects of proposals on designated heritage assets. If, having addressed all the relevant considerations about value, significance and the nature of the harm, and one has then reached the point of concluding that the level of harm is less than substantial, then one must use the test in paragraph 134. It is an integral part of the NPPF sequential approach. Following it does not deprive the considerations of the value and significance of the heritage asset of weight: indeed it requires consideration of them at the appropriate stage. But what one is not required to do is to apply some different test at the final stage than that of the balance set out in paragraph 134. How one strikes the balance, or what weight one gives the benefits on the one side and the harm on the other, is a matter for the decision maker. Unless one gives reasons for departing from the policy, one cannot set it aside and prefer using some different test."
"48. As the Court of Appeal has made absolutely clear in its recent decision in Barnwell, the duties in sections 66 and 72 of the Listed Buildings Act do not allow a local planning authority to treat the desirability of preserving the settings of listed buildings and the character and appearance of conservation areas as mere material considerations to which it can simply attach such weight as it sees fit. If there was any doubt about this before the decision in Barnwell it has now been firmly dispelled. When an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight.
49. This does not mean that an authority's assessment of likely harm to the setting of a listed building or to a conservation area is other than a matter for its own planning judgment. It does not mean that the weight the authority should give to harm which it considers would be limited or less than substantial must be the same as the weight it might give to harm which would be substantial. But it is to recognize, as the Court of Appeal emphasized in Barnwell, that a finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.
50. In paragraph 22 of his judgment in Barnwell Sullivan L.J. said this:
"… I accept that … the Inspector's assessment of the degree of harm to the setting of the listed building was a matter for his planning judgment, but I do not accept that he was then free to give that harm such weight as he chose when carrying out the balancing exercise. In my view, Glidewell L.J.'s judgment [in The Bath Society] is authority for the proposition that a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give "considerable importance and weight"".
51. That conclusion, in Sullivan L.J.'s view, was reinforced by the observation of Lord Bridge in South Lakeland (at p.146 E-G) that if a proposed development would conflict with the objective of preserving or enhancing the character or appearance of a conservation area "there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest". Sullivan L.J. said "[there] is a "strong presumption" against granting planning permission for development which would harm the character of appearance of a conservation area precisely because the desirability of preserving the character or appearance of the area is a consideration of "considerable importance and weight"" (paragraph 23). In enacting section 66(1) Parliament intended that the desirability of preserving the settings of listed buildings "should not simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm, but should be given "considerable importance and weight" when the decision-maker carries out the balancing exercise" (paragraph 24). Even if the harm would be "less than substantial", the balancing exercise must not ignore "the overarching statutory duty imposed by section 66(1), which properly understood … requires considerable weight to be given … to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings" (paragraph 28). The error made by the inspector in Barnwell was that he had not given "considerable importance and weight" to the desirability of preserving the setting of a listed building when carrying out the balancing exercise in his decision. He had treated the less than substantial harm to the setting of the listed building as a less than substantial objection to the grant of planning permission (paragraph 29)."
3. THE APPEAL DECISION
"31. In my view the two fields that make up the appeal site contribute to the significance of the listed Mantley House Farm complex. In their current undeveloped state these fields provide an appropriate rural and tranquil setting for the farm house and the associated former farm buildings. In previous times there may well also have been a functional and historical link between the two as it is likely the fields would have been farmed as part of the extensive Mantley Farm estate. Consequently the appeal proposal would damage the rural setting of the Mantley Farm complex and erode the likely functional and historical relationship that existed between the farm and nearby fields. The effect would be particularly evident from Horsefair Lane as the views of the Mantley Farm complex sitting within a rural landscape would be lost.
32. It is clear from the Illustrative Masterplan for the appeal site that a real effort has been made to reduce the impact of built development and disturbance on the farm complex's immediate setting. To this end the south-western part of the site next to the Mantley House Farm complex would remain undeveloped and be given over to public open space, whilst the main access road off Ross Road would be located away from the western boundary. Furthermore extensive areas of planting are planned along the edge of the proposed private drives nearest to the farm buildings to provide a green edge to the open space and soften the impact of the new dwellings. I consider that the provision of such a sizeable open area on that part of the site next to the Mantley House Farm complex, together with the associated landscaping, would lessen the impact of the development on the immediate setting of this group of listed buildings. However it would not produce a setting of the same quality and characteristics as currently exists.
33. Having regard to the effects of the appeal scheme, the proposed mitigation and the high threshold required for 'substantial harm' I consider that the proposed development would cause 'less than substantial harm' to the Mantley House Farm complex in terms of the Framework."
"42. The Council cannot demonstrate a 5-year supply of deliverable housing sites and it would appear that the shortfall may be significant. Consequently all relevant policies for the supply of housing have to be regarded as out of date and accorded very limited weight. Paragraph 14 of the Framework makes it clear that in such cases planning permission should be granted, where relevant policies in the development plan are out-of-date, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole.
43. I have identified adverse impacts of the appeal scheme. In particular I have concluded that the proposal would detract from the rural character and appearance of Horsefair Lane. I have also found that by causing 'less than substantial harm' the development would fail to preserve the special architectural and historic interest of the Grade II listed Mantley Farm complex and would harm the significance of Picklenash Court, a non-designated heritage asset. These findings bring the scheme into conflict with elements of local and national planning policy.
44. I now turn to the weight that should be attached to these adverse impacts in the overall planning balance. As regards the adverse impact on the character and appearance of Horsefair Lane I believe that the visual harm would be fairly localised and confined to a particular part of Horsefair Lane. Consequently I attach only moderate weight to this consideration.
45. Given the statutory duty as regards listed buildings I am obliged to give considerable weight to the desirability of preserving the setting of the Mantley House farm complex in carrying out the balancing exercise, even though I have found that the harm would be 'less than substantial.' In my view, however, it is also necessary to take account of the fact that the appeal scheme provides for a substantial area of open space on the part of the appeal site next to the Mantley House farm complex. Although this would not replicate the current rural setting of this former farm it would ensure that the listed buildings continue to sit within an undeveloped area and away from other built development. Consequently whilst attaching considerable weight to the failure of the scheme to preserve the special architectural and historic interest of the Grade II listed Mantley House farm I believe that this needs to be tempered with my finding that the new setting created would allow the continued appreciation of these heritage assets within an undeveloped area.
46. Similarly the public open space to be created north of Ross Road would ensure that the non-designated heritage asset, Picklenash Court, retains an open setting to the front albeit of a different nature and extent than currently exists. As a result, taking account of the scale of this harm and the nature of the asset and its surroundings, only limited weight should be attached to the harm to the significance of Picklenash Court.
47. There are considerable public benefits associated with the appeal scheme and these need to be given substantial weight. Paragraph 14 of the Framework makes it clear that sustainable development has three dimensions: economic, social and environmental. In my judgement the proposal would fulfil the economic role of sustainable development and would contribute to building a strong, responsive and competitive economy, by helping to ensure that sufficient land is available to support growth. There would also be associated economic benefits in terms of construction jobs, increased spending in the area, additional Council tax revenues, and the New Homes bonus. With reference to the social dimension the scheme would contribute to boosting housing supply, by providing a range of sizes and types of housing for the community, including a sizeable number of acutely-needed affordable housing units.
48. As regards environmental considerations Newent is recognised as a sustainable settlement and considered to be an acceptable location for accommodating new development. The appeal site is well located in terms of accessibility to the various facilities and services in the town and the development would help to support them. For longer trips alternatives to the private car are available with bus services available in the town. The proposed land to be given over to public open space would be of recreational benefit and footpath/cycleway links would be created across the site. There would be increased opportunities for ecological enhancement and habitat creation that would not arise if the land were to continue in its existing use. In due course a softer edge to the town would be created than currently exists. The site is available and it is likely that it could be developed within the next five years.
49. It is evident that I have identified adverse environmental impacts of the appeal scheme. The essential test in cases such as this is not confined to the assessment of harm in isolation but rather whether the adverse impacts identified would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. In this regard I have also identified a considerable number of economic, social and environmental benefits that would arise as a result of the appeal that need to be given substantial weight. In my judgement the limited number of adverse impacts identified in this case, and their localised nature, even when added together, would not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. I therefore find that there are insufficient grounds for finding against the development and that when taken as a whole the appeal scheme would constitute sustainable development. Consequently the Framework's presumption in favour of sustainable development applies."
4. GROUND 3: DID THE INSPECTOR APPLY THE WRONG TEST?
"Failure to consider the interaction between NPPF 134 and NPPF 14, Footnote 9, and applying the wrong test when balancing the harm and benefits of the development."
Essentially, Mr Wadsley (strongly supported by Mr Lewis for SSCLG) contends that, because the development plan is out-of-date, the presumption in favour of granting planning permission is disapplied in either of the two separate circumstances identified in the last bullet point of paragraph 14 of the NPPF (Limb 1 or Limb 2, set out at paragraph 7(a) above). FDDC and SSCLG submit that Limbs 1 and 2 cover different possibilities. They argue that, in circumstances where there is a finding of less than substantial harm to the significance of a designated heritage asset, the harm has to be weighed against the public benefits of the proposal. Crucially, they say that this balancing exercise must be carried out in the ordinary (or unweighted) way. They say that this is the test required by paragraph 134, and that it is the same test required by Limb 2 of paragraph 14, because paragraph 134 is a policy indicating that development should be restricted.
"Local planning authority should…maintain the character of the undeveloped coast, protecting and enhancing its distinctive landscapes, particularly in areas defined as Heritage Coast, and improve public access to an enjoyment of the coast."
(a) Highfield Farm, Tetbury, Gloucestershire (APP/F1610/A/11/2165778);
(b) New Haine Road, Ramsgate, Kent (APP/Z2260/A/14/2213265);
(c) The Hawthorns and Keele University Campus, Keele, Newcastle-Under-Lyme (APP/P3420/A/14/2219380; APP/P3420/E/14/2219712).
In each of these cases, the SSCLG had written agreeing with the conclusions of the relevant inspector.
"266. The Framework establishes that sustainable development should be seen as a golden thread running through both plan-making and decision-taking. Paragraph 49 advises that housing applications should be considered in the context of the presumption in favour or sustainable development. However it goes on to say that relevant policies for the supply of housing should not be considered up-to-date if the Council cannot demonstrate a 5 year supply of deliverable housing sites. That is the case here and in such circumstances the housing supply policies in the LP are not up-to-date, including those relating to the location of housing. The weight to be given to the policy conflict is therefore reduced. In such circumstances the relevant policy comes from Paragraph 14 of the Framework. Paragraph 14 contains two limbs and it is clear from the word "or" that they are alternatives.
267. The first limb requires a balance to be undertaken whereby permission should be granted unless the adverse impacts significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework as a whole. The second limb indicates that the presumption should not be applied if specific policies indicate development should be restricted. If the Secretary of State does not agree with my GB conclusion, the second limb would apply. Footnote 9 however gives other examples, including those policies relating to designated heritage assets. I have concluded under Consideration Three that the proposal would be harmful in these terms. There was some debate about whether the restriction applies only to cases of substantial harm under Paragraph 133.
268. However the Council makes a persuasive point that Footnote 9 refers to policies in the plural, which would mean the inclusion of circumstances where there is less that substantial harm as well. It seems to me that if the second limb was only expected to apply to heritage assets where there was substantial harm it would have said so. Whilst Paragraph 133, albeit that this is more stringent as one would expect. In the circumstances the presumption doe not apply in this case and it is necessary to balance benefits and harms in accordance with Paragraph 134 of the Framework..."
Note 1 For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion. [Back] Note 2 Unless material considerations indicate otherwise. [Back]
Note 1 For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion. [Back]
Note 2 Unless material considerations indicate otherwise. [Back]