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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 >> Old Hunstanton Parish Council v Secretary of State for Communities and Local Government & Ors  EWHC 1958 (Admin) (15 July 2015)
Cite as:  EWHC 1958 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| OLD HUNSTANTON PARISH COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
HASTOE HOUSING ASSOCIATION LIMITED
KINGS LYNN AND WEST NORFOLK BOROUGH COUNCIL
Richard Honey (instructed by the Government Legal Service) for the First Defendant
Heather Sargent (instructed by Stephens Scown LLP) for the Second Defendant
The Third Defendant did not appear and was not represented
Hearing date: 30 June 2015
Crown Copyright ©
Mrs Justice Lang:
The Claimant's grounds
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
"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)."
Interpretation of the development plan
i) Sub-regional centre: Kings Lynn
ii) Main towns: Hunstanton, Downham Market
iii) Settlements adjacent to Kings Lynn and the main towns: none relevant to this case.
iv) Key Rural Service Centres: 20 are listed of which only Heacham is relevant to this case.
v) Rural villages: 32 are listed of which only Old Hunstanton is relevant.
vi) Smaller villages and hamlets: 54 are listed of which only Ringstead and Holme next the Sea are relevant.
"Decisions … on the location and scale of new development will be taken on the basis of the borough settlement hierarchy"
"Land allocation in each of the settlement tiers will be in accordance with the principles set out in Policy CS09 Housing Distribution"
"Rural Villages Limited minor development will be permitted which meets the needs of settlements and helps to sustain existing services in accordance with Policy CS06 Development in rural areas."
6.1.13 Rural villages have a limited but locally important role meeting the needs of the immediate village. Sustaining the existing services is a key priority. These settlements may see some limited growth, which will help support surrounding rural areas (e.g. some small-scale infilling or affordable housing)."
"Rural Exceptions Policy/Site - a development or Development Plan document may allocate small sites within rural areas solely for affordable housing, which would not otherwise be released for general market housing."
"6.5.1 The Council will continue to encourage a strong hierarchy of rural settlements by developing competitive, diverse and thriving rural enterprise that supports a range of jobs. Rural settlements provide essential services and facilities to serve visitors to the borough as well as the local communities.
6.5.2 In line with national planning guidance for housing (PPS3), the Council's approach to housing in rural areas will seek to sustain rural communities, identifying a need for both affordable and market housing. Rural exception sites can be used to enable the Council to deliver affordable housing in rural communities on sites not otherwise available for residential development. " (emphasis added)
"CS06 Development in Rural Areas
Provision will be made for a total of at least 2,880 new homes within or adjacent to selected Key Rural Service Centres.
In the Rural Villages, Smaller Villages and Hamlets, more modest levels of development, as detailed in Policy CS09, will be permitted to meet local needs and maintain the vitality of these communities where this can be achieved in a sustainable manner, particularly with regard to accessibility to housing, employment, services and markets, and without detriment to the character of the surrounding area or landscape. Sites may be allocated for affordable housing or exception housing in accordance with criteria to support the housing strategy (emphasis added)
Beyond the villages and in the countryside, the strategy will be to protect the countryside for its intrinsic character and beauty, the diversification of its landscapes, heritage and wildlife, and its natural resources to be enjoyed by all. The development of green field sites will be resisted unless essential for agricultural or forestry needs."
"7.2.12 In accordance with the Settlement Hierarchy Policy CS02, the majority of new housing (90%) will be located either within the main towns, settlements adjacent to the main towns and in the settlements designated as Key Rural Service Centres…"
"7.2.15 In Rural Villages which are reliant for many needs on nearby larger centres it would not be appropriate to locate significant amounts of new housing growth here. Any significant expansion would be unsustainable. However there will be opportunities for limited infilling and housing for specific local needs without detriment to the form and character."
"7.2.18 Affordable housing … is unlikely to be delivered by the market alone. The majority of new affordable housing will be delivered through Section 106 planning agreements….Other sites will provide purely affordable housing and will include rural exception sites. Such development is likely to be dependant upon the Registered Social Landlord securing grant funding …"
"Key Rural Service Centres – Provision will be made for at least 2,880 new dwellings in total
Rural Villages - Provision will be made for at least 1,280 new dwellings in total (with allocations for at least 215 new homes) in the rural villages. New housing allocations will be restricted solely to the provision of small scale infilling or affordable housing allocations or potential exceptions housing to meet the identified needs of the local community, and will be identified through the Site Allocations DPD (emphasis added)
It is appropriate to consider the exception provision of affordable housing (maintained in 'perpetuity') [are] within the Rural Villages classification in Policy CS02." (Square brackets added, as the word "are" appears to be superfluous)
"30. In providing for affordable housing in rural communities, where opportunities for delivering affordable housing tend to be more limited, the aim should be to deliver high quality housing that contributes to the creation and maintenance of sustainable rural communities in market towns and villages….Where viable and practical, Local Planning Authorities should consider allocating and releasing sites solely for affordable housing, including using a Rural Exception Site Policy. This enables small sites to be used, specifically for affordable housing in small rural communities that would not normally be used for housing because, for example, they are subject to policies of restraint. Rural exception sites should only be used for affordable housing in perpetuity. A Rural Exception Site policy should seek to address the needs of the local community by accommodating households who are either current residents or have an existing family or employment connection, whilst also ensuring that rural areas continue to develop as sustainable, mixed, inclusive communities."
i) Its purpose is to provide affordable housing in small rural communities (CS Glossary definition; CS06 (cited and underlined at ); CS06 supporting text (cited and underlined at ); CS09 (cited and underlined at ; PPS3). Although the CS Glossary definition is broad and refers to "rural areas" and PPS3 refers to affordable housing in "rural communities in market towns and villages", PPS3 also indicates that the Rural Exceptions Site policy is specifically for housing in "small rural communities", as defined. These are designated rural parishes with fewer than 3,000 inhabitants. Policies CS06 and CS09 only expressly provide for the Rural Exceptions Site policy to be applied in the categories of "rural villages" and "smaller village and hamlets". Whilst Policy CS02 and the settlement hierarchy is relevant to all development, including housing, it sets out general policy and does not itself make any reference to the locations in which the Rural Exceptions Sites policy may operate.
ii) Such housing development is intended "to meet local needs and to maintain the vitality of these communities" (CS06 (cited and underlined at  above)) and "to meet the identified needs of the local community" (CS09 (cited and underlined at )). When read together with the references I have listed at (i) above, I consider that the needs referred to here are primarily the needs of the small rural settlement in which the development site is based. In my view, this interpretation is consistent with both the wording and the objective of the Rural Exception Site policy, as set out in PPS3 and Policies CS06 and CS09. The policy is, exceptionally, relaxing planning constraints on development in rural areas so as to meet the needs of small rural communities, not to meet the housing needs of neighbouring towns and larger conurbations.
iii) The term "local" in the phrases "local needs" and "local community" is not defined. I consider that the natural meaning of the term, in this context, is not necessarily limited to the needs of the settlement in which the development is situated. It could also extend to the needs of other small rural settlements and communities nearby, if in the judgment of the decision-maker, they are "local".
iv) In furtherance of the policy objective of providing affordable housing in rural communities, development may be permitted at rural sites, including green field sites, which would not generally be approved for this purpose (CS Glossary definition; PPS3; CS06 supporting text (cited and underlined at )).
v) This is an exception to the CS general strategy which is to protect the countryside and not to allow green field sites to be developed for housing (CS06 (cited and underlined at )).
Other material considerations
"Small sites used for affordable housing in perpetuity where sites would not normally be used for housing. Rural exception sites seek to address the needs of the local community by accommodating households who are either current residents or have an existing family or employment connection. Small numbers of market homes may be allowed at the local authority's discretion, for example where essential to enable the delivery of affordable units without grant funding."
"54. In rural areas …. local planning authorities should be responsive to local circumstances and plan housing development to reflect local needs, particularly for affordable housing, including through rural exception sites where appropriate…"
"55. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances …"
"General Policy Principles
5.6 The main route for delivery of affordable housing in rural areas is the 'exceptions policy' that allows for small scale development outside of a village's development boundary. Such schemes aim to meet the identified needs of households with a connection to the village. The aim is to meet rural need and help sustain communities by giving preference through the allocation of those homes to those with established local connections."
7.1 High demand for housing in some rural areas has pushed the price of housing out of the reach of many local people. In some areas, particularly in the northern parts of the borough, there have been additional pressures because of the demand for second homes.
7.2 There are very limited opportunities for RSLs to compete with private developers and acquire development land in rural areas because the price of land would normally make an affordable housing scheme unviable.
7.3 It is possible to develop housing in small rural settlements (with populations of 3,000 or under as designated in s.17 of the 1996 Housing Act and various statutory instruments) under a Rural Exceptions Site policy. Policy CS09 of the Core Strategy Document sets out the principle whereby affordable housing can be developed on land outside the development boundary which would not normally be used for housing. As such developments are exceptional and only for affordable housing, the value of the land is much lower in value and viable for an RSL to develop.
Housing developed under these policies must meet local identified need with local people given preference for these homes …. Future allocations … must be in accordance with the local connection criteria."
"7.1 Small Rural Settlements (3,000 and below) – Exception Site policy
7.1.1 Under PPS3 there is a requirement that evidence of housing need be provided before planning permission can be granted for rural exception site development and that any proposed development will 'address the needs of the local community by accommodating households who are either current residents or have an existing family or employment connection whilst also ensuring that rural communities continue to develop as sustainable, mixed and inclusive communities.
7.1.2 The borough-wide Housing Needs Survey 2007 demonstrated that housing need exists throughout the area. In many cases the Housing Register can provide a detailed indication of need and demand for affordable housing in specific parishes.
7.1.3 It is important to give regard to the sustainability of developing in a small rural community. It is not desirable to develop affordable housing in locations without reasonable access to some amenities and services. For this reason and for others mentioned above support for new exception site developments will be focussed in those settlements that are within either the Key Rural Service Centre or Rural Villages category of the Core Strategy Settlement Hierarchy. In determining which settlements to concentrate on within those categories priority will be given to those settlements that have a high housing need and have not benefited from an existing exception site scheme.
7.1.4 The local connection criteria applied to exception sites are attached in Appendix C. Whilst it is desirable to have a common 'local connection criteria' there may be exceptional circumstances where the criteria can be varied to reflect local circumstances.
7.1.6 'Rural Exceptions' sites will be small in scale. They will normally be restricted to a maximum of 15 dwellings."
"1. Existing residents who have lived in the parish for more than 12 months needing separate or alternative accommodation.
2. Past residents of the parish who lived in the parish for a minimum period of 5 years and who moved away within the last 3 years because no suitable accommodation was available.
3. People who need to live in the parish due to their permanent employment or offer of permanent employment.
4. People who are not resident in the parish that need to live near family members currently residing in the parish.
5. Existing residents of adjoining parishes.
6. Existing residents who have lived in the Borough Council of King's Lynn and West Norfolk for a period of 5 years or more".
The evidence before the Inspector
The Inspector's decision
"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."
Note 1 Small rural settlements have been designated for enfranchisement and right to acquire purposes (under Section 17 of the Housing Act 1996) by SI 1997/620-25 inclusive and 1999/1307
[Back] Note 2 Site Allocations and Development Management Policies Pre-Submission document [Back] Note 3 Site Allocations and Development Management Policies Pre-Submission document [Back] Note 4 Site Allocations and Development Management Policies Pre-Submission document [Back]
Note 1 Small rural settlements have been designated for enfranchisement and right to acquire purposes (under Section 17 of the Housing Act 1996) by SI 1997/620-25 inclusive and 1999/1307 [Back]
Note 2 Site Allocations and Development Management Policies Pre-Submission document [Back]
Note 3 Site Allocations and Development Management Policies Pre-Submission document [Back]
Note 4 Site Allocations and Development Management Policies Pre-Submission document [Back]