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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 649 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DARTFORD BOROUGH COUNCIL
|- and -
| SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
FAIRVIEW NEW HOMES LIMITED
Richard Moules (instructed by Treasury Solicitor) for the First Defendant
Timothy Corner QC (instructed by Hogan Lovells International LLP, Solicitors of London) for the Second Defendant
Hearing dates: 16th March 2016
Crown Copyright ©
MR JUSTICE GILBART :
A. The refusal
B. Relevant Development Plan Policy
C. National Planning Policy Framework
D. The Decision Letter
E. The case for the claimant DBC
F. The cases for the First and Second Defendants
A THE REFUSAL
" 1. The proposal would constitute an over intensive development of the site, by reason of the number of dwellings, the inadequacy of the car parking provision, the amenity of future residents, the loss of existing vegetation and the inadequate replacement landscaping proposed. It would therefore be contrary to Policy CS 15 and CS 17 of the Dartford Core Strategy 2011, Policies B1, B3 and T23 of the adopted Dartford Local Plan 1995, and the Council's Parking Standards………2012.
2. By virtue of the walking distances to public transport and other community facilities and the impact on landscaping and biodiversity, the proposal to develop this windfall site is contrary to the criteria set down in Policy CS10 of the Dartford Core Strategy 2011."
B RELEVANT DEVELOPMENT PLAN POLICY
1 In order to meet housing needs and to provide an impetus for regeneration of the Borough, land is allocated for housing in accordance with the spatial; strategy set out in Policy CS 1. The capacity between 2006 and 2026 is as follows:
Dartford Town centre incl Northern Gateway up to 3070
Ebbsfleet to Stone up to 7850
Thames Waterfront up to 3750
Other sites north of A2 up to 2400
Sites south of A2, normally provided within up to 200
2 The Council will support proposals for housing as identified through the strategic site allocations Policies CS 3 and 5 and shown on the Proposals map.
3 Housing proposals will also be supported in the broad locations for development, as identified in table 1 below …………… subject to compliance with other policies in this Plan and with future Local Development Documents.
4 Planning applications for sites not identified as deliverable or developable in the SHLAA will be assessed in the same way as planned development by consideration of:
a. The sustainability of the site for housing development;
b. Whether benefits of development outweigh disbenefits;
c. The capacity of the current and proposed infrastructure to serve the development taking into account committed and planned housing development;
d. Where spare capacity is not available, the ability of the site to provide for the requirements it generates.
5 The Council will monitor the role of windfall sites in overall housing provision and the impact on infrastructure capacity. Where critical trigger points are reached, the Council will take appropriate management action."
(The figures sum to 17,270).
"in tandem with economic growth, new residential communities are proposed. There is enough suitable and available land for up to 17,300 new homes to be built between 2006 and 2026, although the actual pace at which homes will be delivered will depend on market conditions. The aim is to supply a closer alignment of local labour supply and demand, so as to reduce the need for travel……"
"an element of supply from windfall sites can enable early delivery of housing and increase flexibility"
while noting that care must be taken so that infrastructure and community provision was not overloaded. In the event in this case no such issue arose.
i) on the allocated sites
ii) on windfall sites which pass the tests in paragraphs 4 and 5 of CS 10
provided that the point has not been reached where the number of units permitted between 2006 and 2026 exceeds 17,300.
C NATIONAL PLANNING POLICY FRAMEWORK (NPPF)
"……..sets out the Government's planning policies for England and how these are expected to be applied. It sets out the Government's requirements for the planning system only to the extent that it is relevant, proportionate and necessary to do so. It provides a framework within which local people and their accountable councils can produce their own distinctive local and neighbourhood plans, which reflect the needs and priorities of their communities."
"Delivering a wide choice of high quality homes."
"47 To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
- identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
- identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;
- for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and
- set out their own approach to housing density to reflect local circumstances.
48. Local planning authorities may make an allowance for windfall sites in the
five-year supply if they have compelling evidence that such sites have consistently become available in the local area and will continue to provide a
reliable source of supply. Any allowance should be realistic having regard to the Strategic Housing Land Availability Assessment, historic windfall delivery rates and expected future trends, and should not include residential gardens.
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.
50. To deliver a wide choice of high quality homes, widen opportunities for home ownership and create sustainable, inclusive and mixed communities, local
planning authorities should:
- plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes);
- identify the size, type, tenure and range of housing that is required in particular locations, reflecting local demand; and
- where they have identified that affordable housing is needed, set policies for meeting this need on site, unless off-site provision or a financial contribution of broadly equivalent value can be robustly justified (for example to improve or make more effective use of the existing housing stock) and the agreed approach contributes to the objective of creating mixed and balanced communities. Such policies should be sufficiently flexible to take account of changing market conditions over time."
D THE DECISION LETTER
3. Several Statements of Common Ground (SOCG), with Dartford Council, with Kent County Council and with the Council of the London Borough of Bexley reduce the areas of contention. Not all parties subscribe to all the SOCGs. Third parties in particular continue to pursue issues of highway safety. There remain six main issues. They are;
- Whether the site would be a sustainable location for development and the effects of the proposal on;
- The character and appearance of the area
- The living conditions of existing residents of Waterstone Park and of potential future residents of the appeal scheme
- Highway safety
- Housing Land Supply"
"Conclusion in respect of location
22. The Council's Windfall Sites SPD contains a further, non-locational, criterion of combating climate change. Paragraph 2.27 of Tania Smith's evidence asserts that the scheme provides appropriate policy compliant measures with regard to water efficiency and reductions in energy use. I have no reason to disagree. These are set out in the recommendations of the appellant's submitted energy statement and in its sustainability statement, both prepared by Think Three Ltd and can be secured by conditions (17 and 18).
23. With these conditions in place, I conclude that the site would be a sustainable location for development. It would accord with Core Strategy policy CS1 which seeks to focus development in three priority areas. Good public transport facilities are at a reasonable distance. Although it is a greenfield site, its loss would not be greatly significant in agricultural terms. Landscape effects are considered separately, below. It would otherwise comply with subsections (a), (c) and (d) of section 4 of Core Strategy policy CS10 which sets out considerations for assessing windfall sites. It would comply with the locational aspects of policy CS11 which seeks to achieve the delivery of a balanced relationship between homes, jobs and infrastructure. Its development would not be in conflict with part (e) of Core Strategy policy CS14 (1) which seeks to protect and enhance existing open spaces.
"35. Much of the local planning authority's criticism related to the process by which the appeal scheme was designed. But I am considering whether the outcome of whatever process was followed would be acceptable in planning terms by reference to the development plan and other material considerations. What it boils down to is whether it would be acceptable, as the Council's advocate put it in her closing submission, that a 100 year old hedge would be removed, to be replaced partly with front gardens defined by (low box) hedges and the rest with parking spaces and whether or not there should remain a connectivity of open space between the cliff face of Bluewater to the south and the filled land to the north, separating the two developed areas of Hedge Place Road and Waterstone Park."
"39. Remnant hedgerows are noted as a characteristic feature of the Landscape Character Area, which I can confirm from my site visit. In that context, the removal of the hedge on the southern boundary of the site would be a loss of landscape character, although some found the enclosure it presently provides to Hedge Place Road intimidating and a cause of insecurity.
40. But the much more substantial hedge on the opposite side of Hedge Place Road would remain. This includes trees which are seen on the skyline when viewed across Bluewater from the A2 road to the south and so are a significant structural element in landscape terms. The appellant's uncontested verified views show that these would continue to be seen from the south forming a structural break in the landscape between the older development of Hedge Place Road and Plantation Close to the west and the newer development of Waterstone Park to the east, of which the appeal proposal would appear as a part.
41. When viewed from the north, the appellant's uncontested verified views show that the same trees would continue to be seen on the skyline behind the houses in Hedge Place Road and Barnfield Close. The development would be seen to have a slight separation from Waterstone Park. This would be consistent with the description of individual but linked communities described in policy CS4 (1) of the Core Strategy which the Council seeks to promote in the Ebbsfleet to Stone area. The enhanced northern and western hedgerows proposed in the appellant's landscaping plans would help form a new landscape framework to the existing and retained agricultural grazing land on the former landfill areas and an edge to the urban area, in the way sought for this character area by the Landscape Assessment of Kent.
42. I conclude that the proposal's effect on the character and appearance of the area would be acceptable in terms of landscape. It would comply with policy B3 of the Dartford Local Plan adopted in April 1995. This requires development proposals to incorporate appropriate hard and soft landscaping, incorporating existing trees where possible."
"Housing Land Supply
66. Although the Council had the opportunity to set an alternative, locally derived housing target in its Core Strategy, it chose to perpetuate that set by the now abolished South East Plan, which is derived from the requirements and needs of a wider area. It is unchanged by the absence of requests from neighbouring authorities to assist in providing for their objectively assessed needs under the duty to cooperate. Unusually, therefore, the Dartford Core Strategy sets a capacity-based housing target in terms of "up to" a maximum of 17,300 between 2006 and 2026, rather than a local needs-based target of a minimum which is to be exceeded but it is a target, nonetheless. In this respect, my view is consistent with that taken in the "Knockhall Road" decision (APP/T2215/A/13/2203710), to which I was referred.
67. It does not follow that anything less than the maximum satisfies the target; the wider justificatory and explanatory text of the Core Strategy makes it clear that the words "up to" are included because analysis suggests uncertainty in respect of environmental outcomes and the capacity of infrastructure and services to address growth should forecasts indicate that this level of delivery is likely to be exceeded. Nevertheless, the Core Strategy itself only includes a trigger for management action to remedy any shortfall in delivery if forecasts indicate delivery is falling below local housing need levels of 11,700 homes.
68. Paragraphs 47 and 49 of the National Planning Policy Framework do not make that distinction, advising that 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 against their housing requirements. Although the NPPF policy is that housing targets should meet full objectively assessed needs, there is nothing to preclude housing targets being set at a higher level, as is the case in Dartford.
69. From evidence given at the Inquiry it is quite clear that although the Council has granted planning permissions for nearly sufficient housing to meet all its local housing needs even though it is only about half-way through the plan period, those permissions are on sites which will be built out in periods extending long beyond the timescale of the Core Strategy. Nevertheless, in terms of specific deliverable sites, the Council continues to claim that it has identified sufficient land to meet both its trigger point for management action and its Core Strategy target for the next five years.
70. Its Core Strategy target is phased, with target delivery rates peaking in the third of a four-phase delivery period. Previous shortfalls are addressed on the Liverpool method over the whole period of the plan rather than the first five years because the target is not a needs-based figure. This method is also applied to its five years housing target calculation and no "buffer" is applied, resulting in a five-year target of up to 6450. Although the appellant argues for a different basis of calculation, the accuracy of this figure is confirmed in evidence. I have no quarrel with the use of the Liverpool method, for the reasons given by the Council.
71. The Council's intervention trigger point of 4040 is calculated on a different basis, because it is a needs-based figure, using the Sedgefield method for addressing shortfalls and adding a 5% buffer. Shortfalls in delivery were not considered persistent at the time of the Knockhall Road decision. Although shortfalls have persisted for two further years, completion rates have picked up somewhat and there has been a step-change in the annual target, so I am not convinced that a verdict of persistent underdelivery is yet justified.
72. The Council's record in forecasting its delivery against target is poor, as demonstrated by the appellant's uncontroverted evidence. For that reason, I do not accept the Council's prediction that delivery rates will increase to double or treble those of the recent past. I am more persuaded by the appellant's evidence that possible delivery in the next five years is 6172. Even that represents a doubling of recent delivery rates and so I do not disagree with the appellant's description of it as hugely ambitious. Nevertheless, the appellant accepts that it is realistic and I have no reason to disagree.
73. Even that hugely ambitious expectation of delivery fails to meet the Core Strategy target for the next five years. It follows that, in line with national policy expressed in the NPPF, I should not regard the Council's policies for the supply of housing as being up to date. Paradoxically, that would include Core Strategy policy CS10 (4) for the assessment of windfall sites with which I have found this appeal proposal to comply but, in practice, the outcome is the same because NPPF paragraph 14 advises that where relevant policies are out of date, permission should be granted 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. I have previously noted that policy CS10 (4) of the Dartford Core Strategy can be seen to align closely with the NPPF.
74. Both the appellant and the Council produce tables showing recent housing delivery; the appellant against the Core Strategy target, the Council against the trigger for management action. At nine-twentieths of the way through the plan period, delivery shows a 32% shortfall against the Core Strategy target and an 18% shortfall compared with the Council's trigger for management action. Whichever way it is looked at, management action is needed to increase delivery.
75. Paragraph 3.21 of the Council's Core Strategy advises that an element of supply from windfall sites can enable early delivery of housing and increase flexibility. That is a measure of the beneficial effects on housing land supply which this proposal would have.
76. Affordable housing is proposed comprising a total of 16 units. That represents 29% of the dwellings proposed. It would be marginally below the 30% required by Core Strategy policy CS19 but the Council does not contest the shortfall. As its provision is a policy requirement, its inclusion in the Unilateral Undertaking would be CIL compliant.
77. I conclude that the shortfall of affordable housing provision would be marginal and not such as to justify dismissing the appeal. The effect of the proposal on the supply of housing overall would be beneficial. The proposal would therefore accord with Core Strategy policy CS10 which provides for housing development."
"Conclusions and conditions
78. The overall planning balance would be as follows. As a greenfield site, the land would not be of the preferred type for development but its loss would not be greatly significant. It would be in the right place, supported by infrastructure. The balanced and sustainable pattern of land use and transport sought by policy CS11 and the third of the Core Strategy's key principles would be maintained. The balance of ecological effect would be marginally positive. So would its landscape effects. The living conditions it would provide would be acceptable. It would not have an unacceptable effect on highway safety. Its benefits in terms of housing provision would be unqualified at a time when management action to increase delivery rates is called for.
79. The appeal proposal would therefore perform the three roles of a sustainable development. I conclude that the adverse impacts of granting permission would not significantly or demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole; indeed, rather the reverse and so, the appeal should be allowed."
E THE CASE FOR THE CLAIMANT DBC
i) that the Inspector failed to give adequate reasons for assessing the 5 year supply figure against the CS10 figure of "up to 17,300";
ii) that he failed to give adequate reasons for finding that the impact on landscape character would be acceptable.
F CASES FOR THE SECRETARY OF STATE AND FOR THE SECOND DEFENDANT
"in dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"Relevant legal principles
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).
"42 The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory "presumption in favour of the development plan", as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the "presumption in favour of sustainable development", do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework – as the NPPF itself acknowledges, for example, in paragraph 12 (see paragraph 12 above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense.
43 When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted."