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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wokingham Borough Council v Secretary of State for Housing, Communities And Local Government & Anor [2019] EWHC 3158 (Admin) (21 November 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/3158.html Cite as: [2019] EWHC 3158 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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WOKINGHAM BOROUGH COUNCIL |
Claimant |
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- and - |
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(1) SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT (2) TAYLOR WIMPEY UK LIMITED |
Defendants |
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(1) DARRELL JOHN BEASLEY (2) BEVERLEY ANNE BEASLEY |
Interested Parties |
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Jacqueline Lean (instructed by the Government Legal Department) for the First Defendant
Morag Ellis QC (instructed by Eversheds Sutherland) for the Second Defendant
The Interested Parties did not appear and were not represented
Hearing date: 6 November 2019
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Crown Copyright ©
Mrs Justice Lang :
Planning history
"Overall
51. I have found that the proposal, including the mitigation measures, would not adversely affect the integrity of the SPA. On this basis the presumption in favour of sustainable development applies. I note that Policy CC01 of the LP has similar wording to the previous Framework in terms of the presumption, which has now been superseded.
52. The parties agree that the housing numbers set out in Policy CP17 of the CS are out-of-date as they were based on the South East Plan which has been revoked. Where strategic policies are more than 5 years old, as is the case here, the Framework requires that local housing need is calculated using the standard methodology. Using the 2014-based household projections the housing need for the period 2018 to 2023 is 4,320 dwellings, including a 5% buffer. This would require delivery of 907.2 dwellings per annum (dpa). This delivery rate significantly exceeds that which is specified in Policy CP17 at 723 dpa. There is a 6.83 years' supply of deliverable housing sites and paragraph 11 (d) of the Framework is not engaged on the basis of housing land supply.
53. Part of this supply has, however been achieved by using land outside the development limits. In the Lambs Lane appeal [APP/X0360/W/18/3199728] the Inspector noted the use of land outside development limits in achieving the housing land supply and considered that this could reduce the weight to be given to those limits. Nonetheless she concluded that this did not support attributing the aims of the policies limited weight.
54. In the Stanbury House appeal [APP/X0360/W/15/3097721], the parties had agreed the annual rate to deliver the objectively assessed need to be 876 dpa. The Inspector gave limited weight to the development boundaries on the basis that they were derived from Policy CP17. The housing need of over 907 dpa is higher still than the figure used in that appeal.
55. I take the view that the development limits are out-of-date because they are based on an outdated housing requirement, but that the aims of Policies CP11, CP9 and CC02 are generally consistent with national policy. It is important to look at the underlying aims of those policies in deciding the weight to be given to the conflict with them. Those aims are to protect the identities of separate settlements, to maintain the quality of the environment and to locate development where there is good accessibility to services and facilities. For the reasons given above, the proposal would maintain the separation of the settlements and their separate identities. There would be a high degree of accessibility to services and facilities. Although there would be limited harm to the character and appearance of the area, the SANG would be designed to maintain the quality of the environment. For these reasons the proposal would be in accordance with the underlying aims of the policies to a significant extent.
56. Because the development limits are out-of-date, Policies CP11, CP9 and CC02 are not fully up-to-date. This does not mean, however that those policies are out-of-date such that the tilted balance in paragraph 11 (d) of the Framework would be engaged. Nonetheless because the policies are not fully up-to-date the conflict with them does not attract full weight. I also take into account the significant degree of consistency between the proposal and their underlying aims. Having regard to all of these factors I give significant weight to the policy conflict. I have also given great weight to the harm to the setting of the listed building and moderate weight to the harm to the character and appearance of the area.
57. On the other hand, I have given substantial weight to the benefit of the SANG. I also give significant weights to the benefits of the affordable housing, the accessible location and to the enhancement to the setting of the listed building in terms of improved public access. There would also be economic benefits arising from the construction of the development and from the expenditure of its residents and I give further limited weight in this regard. The improvement to the footpath linking to Oakbank School would primarily be required to address the needs of the development but would also be of wider benefit. The planting within the SANG would aim for biodiversity gain. I give further limited weights to these benefits.
58. The substantial, three significant and three limited weights that I have identified in favour of the proposal would be enough to outweigh the great, significant and moderate weights that I attach to the harms and policy conflicts. The material considerations are of enough weight to indicate that my decision should be otherwise than in accordance with the development plan. This balancing exercise demonstrates that the benefits would outweigh the impacts and the proposal would accord with Policy 1 of the NP in this respect."
Grounds of challenge
i) The Inspector failed to give adequate reasons for his conclusion.
ii) If the Inspector's reason for his conclusion was simply that the housing requirements in CP17 were out-of-date, he took into account an immaterial consideration and/or his conclusion was irrational.
iii) The Inspector failed to have regard to a material consideration, namely, whether or not the development limits were preventing the Council from complying with national policy on the five year housing land supply.
iv) The Inspector acted unfairly in relying upon the fact that some of the sites in the Council's five year housing land supply fell outside settlement boundaries, without requesting evidence and/or submissions on this matter from the Council.
i) The reasons were intelligible and adequate, when read fairly as part of the decision as a whole.
ii) The undisputed evidence was that the development limits were set by reference to the out-of-date housing requirements in CP17. This was a material consideration and it was rational for the Inspector to have regard to it. On a fair reading of the decision, the Inspector did not reach his conclusion simply on the basis that CP17 was out-of-date.
iii) The Inspector was well aware of the evidence in respect of the Claimant's housing land supply, and the Claimant's submission at the Inquiry that this was "a powerful material consideration pointing to the giving of full weight to the settlement boundary policies" (paragraph 50 of the Claimant's closing submissions). It did not follow that the Inspector was therefore required to conclude that the conflict with the policies should be given full weight. It was no part of the Inspector's role to consider whether the development limits in the development plan were appropriate – that was a matter for consideration on examination of the emerging Local Plan.
iv) The Claimant must have been aware that the extent to which development had occurred outside settlement limits was potentially relevant, in the light of the previous inspector's decision in Lambs Lane which was part of the evidence at the Inquiry. The Claimant adduced evidence on this point, and both parties made submissions on it. The Claimant was given a fair opportunity to address this matter.
Legal and policy framework
(i) Applications under section 288 TCPA 1990
"An application under section 288 is not an opportunity for a review of the planning merits….."
a) South Somerset District Council, per Hoffmann LJ at 84:
"...as Forbes J. said in City of Westminster v Haymarket Publishing Ltd:
"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."
The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning ... Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."
b) Clarke Homes, per Sir Thomas Bingham MR at 271-2:
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
(ii) Decision-making
"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."
"Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters……
By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is helpful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.
Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell J observed in Loup v Secretary of State for the Environment (1995) 71 P & C.R. 175, 186:
"What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations."
Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues.
…..
In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
(iii) The Framework
i) Framework policies that protect areas or assets of particular importance provide a clear reason for refusal; or
ii) 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 (often described as the "tilted balance").
"This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years. Transitional arrangements for the Housing Delivery Test are set out in Annex 1."
"To support the Government's objective of significantly boosting the supply of homes, it is important that a sufficient amount and variety of land can come forward where it is needed, that the needs of groups with specific housing requirements are addressed and that land with permission is developed without unnecessary delay."
"73. Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years' worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old [Footnote 37: Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance.]. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:
a) 5% to ensure choice and competition in the market for land; or
b) 10% where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan; or
c) 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply."
"However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, 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)."
"….. there is nothing in the relevant provisions of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date…It will be a question of fact or in some cases fact and judgment. The expiration of the end date of the plan may be relevant to that exercise but it is not dispositive of it."
"40. I would formulate the position in this way:
i) Since old policies of the kind illustrated by policies HS22 and HS24 in this case are part of the development plan, the starting point, for the purposes of decision-making, remains section 38(6) of the 2004 Act. This requires that decisions must be made in accordance with the development plan — and, therefore, in accordance with those policies and any others contained in the plan — unless material considerations indicate otherwise. The mere age of a policy does not cause it to cease to be part of the development plan; see also para. 211 of the NPPF, set out above. The policy continues to be entitled to have priority given to it in the manner explained by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, HL, at 1458C-1459G.
ii) The weight to be given to particular policies in a development plan, and hence the ease with which it may be possible to find that they are outweighed by other material considerations, may vary as circumstances change over time, in particular if there is a significant change in other relevant planning policies or guidance dealing with the same topic. As Lord Clyde explained:
"If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance" (p.1458E).
iii) The NPPF and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations. Paragraph 215 sets out the approach to be adopted in relation to old policies such as policies HS22 and HS24 in this case, and as explained above requires an assessment to be made regarding their consistency with the policies in the NPPF. The fact that a particular development plan policy may be chronologically old is, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF.
iv) Since an important set of policies in the NPPF is to encourage plan-led decision-making in the interests of coherent and properly targeted sustainable development in a local planning authority's area (see in particular the section on Plan-making in the NPPF, at paras. 150ff), significant weight should be given to the general public interest in having plan-led planning decisions even if particular policies in a development plan might be old. There may still be a considerable benefit in directing decision-making according to a coherent set of plan policies, even though they are old, rather than having no coherent plan-led approach at all. In the present case, it is of significance that the Secretary of State himself decided to save the Local Plan policies in 2007 because he thought that continuity and coherence of approach remained important considerations pending development of appropriate up-to-date policies.
v) Paragraph 49 of the NPPF creates a special category of deemed out-of-date policies, i.e. relevant policies for the supply of housing where a local planning authority cannot demonstrate a five-year supply of deliverable housing sites. The mere fact that housing policies are not deemed to be out of date under para. 49 does not mean that they cannot be out of date according to the general approach referred to above.
41. In the particular circumstances of this case Mr Kimblin submitted (i) that the facts that policies HS22 and HS24 appeared in a Local Plan for the period 1991–2006, long in the past, and were tied into the Structure Plan (in particular, in relation to policy HS24, as set out in the explanatory text at para. 4.97 of the Local Plan), which is now defunct, meant that very reduced weight should be accorded to them; (ii) that the Local Plan policies in relation to housing supply, which include policies HS22 and HS24, are "broken" and so again should be accorded little weight; and (iii) that policies HS22 and HS24 have been superseded by more recent guidance, in the form of para. 47 of the NPPF, and so should be regarded as being outdated in the manner explained by Lord Clyde in City of Edinburgh Council. I do not accept these submissions.
42. As to (i), policies HS22 and HS24 were saved in 2007 as part of a coherent set of Local Plan policies judged to be appropriate for the Council's area pending work to develop new and up-to-date policies. There was nothing odd or new-fangled in the inclusion of those policies in the Local Plan as originally adopted in 1997. It is a regular feature of development plans to seek to encourage residential development in appropriate centres and to preserve the openness of the countryside, and policies HS22 and HS24 were adopted to promote those objectives. Those objectives remained relevant and appropriate when the policies were saved in 2007 and in general terms one would expect that they remain relevant and appropriate today. At any rate, that is something which needs to be considered by the planning inspector when the case is remitted, along with the question of the consistency of those policies with the range of policies in the NPPF under the exercise required by para. 215 of the NPPF. The fact that the explanatory text for policy HS24 refers to the Structure Plan does not detract from this. It is likely that the Structure Plan itself was formulated to promote those underlying general objectives and the fact that it has now been superseded does not mean that those underlying objectives have suddenly ceased to exist. As the judge observed at [49], "some planning policies by their very nature continue and are not 'time-limited', as they are re-stated in each iteration of planning policy, at both national and local levels."
43. As to (ii), the metaphor of a plan being "broken" is not a helpful one. It is a distraction from examination of the issues regarding the continuing relevance of policies HS22 and HS24 and their consistency with the policies in the NPPF. As Mr Kimblin developed this submission, it emerged that what he meant was that it appears that the Council has granted planning permission for some other residential developments in open countryside, i.e. treating policy HS24 as outweighed by other material circumstances in those cases, and that it relies on those sites with planning permission, among others, in order to show that it has a five year supply of deliverable residential sites for the purposes of para. 47 (second bullet point) and para. 49 of the NPPF. Mr Kimblin says that this shows that the saved policies of the Local Plan, if applied with full rigour and without exceptions, would lead the Council to fail properly to meet housing need in its area, according to the standard laid down in paras. 47 and 49 of the NPPF. Therefore, he says, no or very reduced weight should be accorded to policies HS22 and HS24.
44. In my view, this argument is unsustainable. We were shown nothing by Mr Kimblin to enable us to understand why the Council had decided to grant planning permission for development of these other sites. So far as I can tell, the Council granted planning permission in these other cases in an entirely conventional way, being persuaded on the particular facts that it would be appropriate to treat material considerations as sufficiently strong to outweigh policy HS24 in those specific cases. Having done so, there is no reason why the Council should not bring the contribution from those sites into account to show that it has the requisite five year supply of sites for housing when examining whether planning permission should be granted on Gladman's application for the site in the present case. The fact that the Council is able to show that with current saved housing policies in place it has the requisite five year supply tends to show that there is no compelling pressure by reason of unmet housing need which requires those policies to be overridden in the present case; or – to use Mr Kimblin's metaphor – it tends positively to indicate that the current policies are not "broken" as things stand at the moment, since they can be applied in this case without jeopardising the five year housing supply objective. In any event, an assessment of the extent of the consistency of policies HS22 and HS24 with the range of policies in the NPPF is required, as set out in para. 215 of the NPPF, before any conclusion can be drawn whether those policies should be departed from in the present case."
"… all that Sales LJ was suggesting was that the fact that the council had granted planning permission for some of the sites in the five-year housing land supply on sites in breach of policy HS 24 would not in and of itself justify a conclusion that that policy was out of date. That was an issue which would require, again, careful evaluation against the background of the terms of the policy, the available evidence as to its performance and scrutiny of its consistency with the Framework. That will inevitably be a case-sensitive exercise…."
Conclusions
Ground 1
"27. I give further significant weight to the benefit of the proposed affordable housing because of the acute need for such housing in the area.There are over 1,800 households on the Council's housing register awaiting rented accommodation and at least 1,500 households on the shared ownership register. It is evident that although the Council is taking action to deliver the 441 affordable homes needed annually, as revealed by the Berkshire Strategic Housing Market Assessment (2015), through its housing company, the past record of delivery has fallen short of that figure."
"4.11 The new proposed boundaries do not allow more development than that which is set by the Core Strategy, nor do they allow less SANG than is required according to the formula set out in the Core Strategy."
I do not consider that the Inspector was required to set out this evidence in support of his conclusion, since there was no evidence to the contrary, and the link between the housing requirements and the development limits was not disputed by the Claimant.
Ground 2
"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."
Ground 3
"The grant of such permissions in the past does not demonstrate that reduced weight should now be given to settlement boundary policies Firstly, because they represent the normal working of the planning system and the flexibility of the strategy of the plan, rather than some general indictment of the policies in the plan. Secondly, because even if (as in the case of a former lack of 5 year housing land supply) they do relate to historic problems of housing delivery, however caused, that is no reason to give reduced weight to settlement boundary policies now. They are not preventing any obstacle to delivery now."
Ground 4
Final conclusion