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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 >> Daventry District Council v Secretary of State for Communities And Local Government & Anor  EWHC 3459 (Admin) (02 December 2015)
Cite as:  EWHC 3459 (Admin)
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QUEEN'S BENCH DIVISION
B e f o r e :
| DAVENTRY DISTRICT COUNCIL
- and -
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) GLADMAN DEVELOPMENTS LIMITED
Mr Richard Kimblin (instructed by Irwin Mitchell LLP) for the Second Defendant
The First Defendant did not appear and was not represented.
Hearing date: 19 November 2015
Crown Copyright ©
Mrs Justice Lang:
"1. The proposed development would be contrary to saved local plan policies GN1 (b and f), HS22, HS24 and GN2(g) and policy S1 of the emerging JCS [Joint Core Strategy], by reason of it being large scale development outside the confines of the restricted infill village, affecting open land of significance of the character and form of the village, within the open countryside and adjacent to the SLA. Therefore applying paragraph 12 of the NPPF, permission should be refused unless other material considerations indicate otherwise. Applying the fall-back position within paragraph 14 of the NPPF, it is considered that the adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole. Specifically, the proposal would not constitute sustainable development due to the following elements of conflict with the NPPF and local policies:
a) The development would be a peripheral cul-de-sac estate that suburbanise this rural village location, would erode the local, character and historic form of the settlement, would not integrate well with the existing village and would facilitate social interaction or health, inclusive communities (contrary to paragraphs 55, 58, 61 and 69 of NPPF and saved policy GN2(a) of the Daventry Local Plan).
b) The development would not be well connected to local facilities (both within and outside Weedon) and accessibility by means other than the private car would be limited in terms of both practicality and attractiveness (contrary to paragraphs 35, 36, 58, 61 and 69 of NPPF and policy S10 of the emerging JCS).
c) The development would result in loss and harm to a valued local landscape, and would diminish the recreational value of the rural right of way that runs adjacent to and through the site … (contrary to paragraphs 69 and 110 of NPPF).
d) The development would cause harm to the setting of designated heritage assets ……
"86.…I find that as the Council can demonstrate a 5 year HLS the weighted presumption in favour of sustainable development (NPPF 14) does not apply and the appeal should be determined on the normal planning balance. Nevertheless, the site would be well connected to a village with many local services and none of the harm I have identified would outweigh the benefits of providing more housing and much needed affordable housing in particular. Subject to control, through conditions and the s.106 Agreement, and having regard to all other matters raised, I conclude that the appeal should be allowed."
Applications under section 288 TCPA 1990
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
Ground 1: failure to determine the application in accordance with the development plan and misapplication of the National Policy Planning Framework
"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." (emphasis added)
"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33,  1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:
"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions 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." "
"18. … The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained…..these considerations suggest that, in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.
19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment  1 WLR 659, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
The development plan
a) The West Northamptonshire Joint Core Strategy Development Plan Part 1 which was adopted on 15 December 2014.
b) Policies from the Daventry District Local Plan which were adopted in June 1997, and saved in September 2007, pursuant to a direction from the First Defendant under paragraph 1(3) of schedule 8 to the PCPA 2004. Some were replaced by the JCS in December 2014. A revised version of the remaining saved policies was published in February 2015. It is anticipated that they will eventually be replaced by the Daventry Settlements and Countryside Local Plan when adopted.
"To set out the District Council's policies for the control of development and, where appropriate, to make specific proposals for the use of land. It is based upon the provisions of the Northamptonshire County Structure Plan, as approved by the Secretary of State in February 1989, and takes account of Alteration No. 1 to that Plan, as approved by the Secretary of State in February 1992. The plan will deal with the period 1991 to 2006 and will, with the Northamptonshire County Structure Plan, constitute the statutory development plan for the District."
"In addressing where the additional housing allocation to the District should be located, the Council has been concerned to follow Government advice to guide new development to locations, which reduce the need for car journeys and the distances driven. Daventry is clearly the major employment and service centre within the district and the Council has concluded that this advice would best be met by allocating further land for housing in the town."
"RESTRICTED INFILL VILLAGES
PLANNING PERMISSION WILL NORMALLY BE GRANTED FOR RESIDENTIAL DEVELOPMENT IN THE RESTRICTED INFILL VILLAGES PROVIDED THAT:
A IT IS ON A SMALL SCALE, AND
B IT IS WITHIN THE EXISTING CONFINES OF THE VILLAGE, AND
C IT DOES NOT AFFECT OPEN LAND WHICH IS OF PARTICULAR SIGNIFICANCE TO THE FORM AND CHARACTER OF THE VILLAGE, OR
D IT COMPRISES THE RENOVATION OR CONVERSION OF EXISTING BUILDINGS FOR RESIDENTIAL PURPOSES PROVIDED THAT THE PROPOSAL IS IN KEEPING WITH THE CHARACTER AND QUALITY OF THE VILLAGE ENVIRONMENT."
"4.88 The objectives of the District Council's planning policies in respect of these villages are as follows:
a to ensure that new development does not bring about the extension of the village into open countryside,
b to ensure that existing buildings are retained as far as possible,
c to ensure that the scale, character, design and density of new development and redevelopment within the village is sympathetic to the existing built environment, and
d to ensure that such important open spaces as now remain in these villages do not become the subject of unsuitable infill development.
4.89 In determining what constitutes "small scale" for the purposes of this policy, the District Council will not attempt to impose arbitrary upper limits on the number of dwelling units included in any application but will rather judge each case on its merits with particular regard to:
a the scale of the proposal in relation to the character of the immediately adjoining area,
b the scale of the proposal in relation to the size of the village as a whole, bearing in mind the need to maintain a balanced housing stock and assist in the social integration of new residents.
c the scale of the proposal relative to other current an recent infill proposals, bearing in mind the need to ensure that the cumulative effects of successive developments do not damage the character and amenity of established residential areas.
d the impact of the proposal on local services.
The Existing Confines
4.90 For the purposes of this policy, "existing confines of the village" will be taken to mean that area of the village defined by the existing main built-up area but excluding those peripheral buildings such as free-standing individual or groups of dwellings, nearby farm buildings or other structures which are not closely related thereto. Gardens, or former gardens, within the curtilages of dwelling houses, will not necessarily be assumed to fall within the existing confines of the village. The construction of a bypass around a Restricted Infill Village will not be regarded as an extension to the confines of the village and land between the existing built up area and the new Road will be considered as open countryside.
Important Open Land
4.91 Such sites will normally comprise large open frontages whose contribution to the character of the village is of acknowledged importance. However, private gardens and orchards can also make significant contributions to the local environment, both within and on the edge of the village, and the development of these will be resisted under this policy where appropriate. The development of private gardens which do not make an immediate contribution to the character of the local environment will also be resisted where they form important settings for listed buildings or other buildings of quality."
PLANNING PERMISSION WILL NOT BE GRANTED FOR RESIDENTIAL DEVELOPMENT IN THE OPEN COUNTRYSIDE OTHER THAN:
A DEVELOPMENT, INCLUDING THE RE-USE OR CONVERSION OF EXISTING BUILDINGS, ESSENTIAL FOR THE PURPOSES OF AGRICULTURE OR FORESTRY
B THE REPLACEMENT OF AN EXISTING DWELLING PROVIDED IT RETAINS ITS LAWFUL EXISTING USE AS A DWELLING HOUSE PROVIDED THAT THE DWELLING IS NORMALLY OF THE SAME GENERAL SIZE, MASSING AND BULK AS THE ORIGINAL DWELLING SITED ON THE SAME FOOTPRINT AND RESPECTS THE DISTINCTIVE NATURE OF ITS RURAL SURROUNDINGS."
"The County Structure Plan seeks to restrain development in the open Countryside and this policy seeks to prevent residential development unless there is there is a requirement for accommodation for agriculture or forestry workers or the dwelling is direct replacement."
The Inspector's conclusions on the development plan
"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."
"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 the Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted."
"68. The Council acknowledged, as it must, that saved LP policies HS22 and HS24 are both policies for the supply of housing. However, given that the Council can demonstrate a 5 year HLS, albeit only just, these policies are not excluded by NPPF 47. Nevertheless, given the age of the policies and their lack of consistency with the thrust of NPPF 49 towards boosting significantly the supply of housing, I give the conflict with these policies and GN1(E) and (F), reduced weight."
72. For the above reasons, I find that only moderate weight should be given to the conflict with some policies in the LP and JCS. Conversely, substantial weight should be given to the scheme's contribution to meet housing targets and provide AH in particular. Taken together, I find that the proposals would accord with the development plan as a whole. Moreover, the fact that the proposals would amount to sustainable development, as defined in the NPPF, amounts to a material consideration of substantial weight which outweighs any conflict with the development plan in any event."
Errors in the Inspector's approach
"209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.
210. Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
211. For the purposes of decision-taking, the policies in the Local Plan …. should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.
212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.
213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.
214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.
215. 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)."
"1….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."
"150. ….Local Plans are the key to delivering sustainable development that reflects the vision and aspirations of local communities…"
"Special landscape area (SLA)
15. Much of Daventry district lies within a SLA defined in saved LP Policy EN1 and sets criteria for development in these areas. Policy GN2(G) normally grants permission for development providing that it would not adversely affect a SLA. Two points arise. First, the appeal site adjoins the SLA, but is not itself within it, and so Policy EN1 does not apply and Policy GN2(G) does not apply directly. Secondly, these are very old policies being based on a Structure Plan which pre-dated the 1990 Act. Under the … NPPF paragraph 215 (NPPF 215) policies relating to landscape areas should be criteria-based whereas Policy GN2(G) is not. This policy should therefore be given limited weight."
i) It was dealing with a different issue – the effect on landscape – and different policies.
ii) There were two reasons for his overall conclusion that the policies should be given "limited weight". First, they did not apply, directly or at all, to this site, as it fell outside the SLA; and second because the policies were "very old". It is not apparent from the reasoning the extent to which each reason contributed to the conclusion on weight.
iii) The Inspector referred to the fact that the policies were based on a pre-1990 Act Structure Plan. He had received evidence/submissions from Ms Tilston, the Second Defendant's Planning Manager, on the way in which national landscape policy had changed over the years, and how the SLA was now out of date. However, it would not necessarily follow that the same conclusion could be drawn in respect of the saved housing policies.
iv) The Inspector's reference to NPPF 215 was simply an error; he should have referred to NPPF 113, as this is the paragraph which advises that landscape policies should be criteria-based. I accept that the Inspector probably had NPPF 215 in mind, as the point he made addressed the degree of consistency between the policy and the NPPF. But this point is specific to landscape policies; it does not assist on whether the saved housing policies were or were not consistent with the NPPF.
Ground 2: Reasons