QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| William Davis Limited
|- and -
(1) Secretary of State for Communities and Local Governments
(2) North West Leicestershire District Council
James Maurici QC (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant was not represented
Hearing dates: 2nd & 3rd October 2013
Crown Copyright ©
Mrs Justice Lang DBE :
The scope of an application under section 288 TCPA 1990
"(1) If any person -
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds -
(i) that the action is not within the powers of the Act,
(ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section. …
(5) On any application under this section the High Court—
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
"(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g. Ashbridge Investments Ltd v. Minister of Housing and Local Government  1 W.L.R. 1320, per Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation  1 KB 223 at 230:"
'It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.'
(2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g. again the Ashbridge Investments case, per Lord Denning M.R. loc. cit.
(3) The Secretary of State must abide by the statutory procedures, in particular by the Town and Country Planning (Inquiries Procedure) Rules 1974. These Rules require him to give reasons for his decision after a planning inquiry r.18 and those reasons must be proper and adequate reasons which are clear and intelligible, and deal with the substantial points which have been raised: Re Poyser and Mills Arbitration  2 Q.B. 467."
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."
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."
Grounds of challenge
Ground 1: Misinterpreting and misapplying the NPFF
1. Legal principles
"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 thought useful 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 … if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. 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."
"is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what has been laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority.
The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is … a limited one."
"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. 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 … in this area of public administration as in others … policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
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). …"
2. Development Plan
a) The East Midlands Regional Plan, approved in 2009. At the time of the DL the Secretary of State had not yet revoked regional strategies, but he had issued a letter stating that he intended to do so. In R (on the application of Cala Homes (South) Ltd v Secretary of State for Communities and Local Government  EWCA Civ 639 the Court of Appeal held that this intention was lawfully capable of being a "material consideration".
b) The North-West Leicestershire Local Plan, adopted in 2002. Policy E20, of particular importance in this case, had been saved on terms by direction of the Secretary of State dated 21st September 2007.
"44. The East Midlands Regional Plan: The most relevant EMRP policies are cited in the SCG [CD-ID1]. Whereas the appellants consider that the proposals conform with all of these policies, the Council argues that they conflict in particular with policies 1 (regional core objectives), 26 (protecting and enhancing the region's natural and cultural heritage), 28 (regional priorities for environmental and green infrastructure), and 36 (regional priorities for air quality).
45. The EMRP provides a broad development strategy for the East Midlands up to 2026. Of relevance to North West Leicestershire and Coalville, its Three Cities Sub Regional Strategy "contains policies and proposals to create more sustainable patterns of development and movement within and between Leicester, Derby and Nottingham and their hinterlands". The regional key diagram, shows Coalville as a sub-regional centre (SRC) within the national forest, subject to policy 3.
46. Policy 1 includes 11 regional core objectives, including those relating to housing, the economy and the environment. Policy 3 - distribution of new development - states that appropriate development (of a lesser scale than in the region's 5 principal urban areas) should be located in the sub-regional centres, including Coalville, the only SRC in North West Leicestershire. Para 2.2.9 explains that the SRCs have been selected on the basis of their size, the range of services they provide, and their potential to accommodate further growth.
47. Policy 13a sets out the regional housing provision. The total for North West Leicestershire in 2006-2026 is 10200, giving an annual provision (or requirement) of 510.
48. The three cities sub-regional strategy, stated in policy SRS3, provides that in North West Leicestershire the 510 d.p.a. will be "located mainly at Coalville, including sustainable urban extensions as necessary". The EMRP gives no further indication as to an appropriate location or locations for a SUE at Coalville, as this was to be a matter for local plan policies.
49. Para 4.2.18 refers to Green Wedge policies. It notes that "Green Wedges serve useful strategic planning functions in preventing the merging of settlements, guiding development form, and providing a green lung into urban areas, and act as a recreational resource. Although not supported by Government policy in the same way as Green Belts, they can serve to identify smaller areas of separation between settlements." It goes on to note that "A review of existing Green Wedges or the creation of new ones in association with development will be carried out through the local development framework process".
50. Policy 26 - protecting and enhancing the region's natural and cultural heritage – states, inter alia, that "the region's best and most versatile agricultural land should be protected from permanent loss or damage". Policy 36 - regional priorities for air quality - says that local development frameworks etc. should contribute to reducing air pollution in the region, and consider the potential effects of new developments and increased traffic levels on air quality.
51. The North West Leicestershire Local Plan: This was adopted in August 2002 and many of its policies were saved in 2008.
52. Central to this Inquiry is saved policy E20, Green Wedge, which states that "Development will not be permitted which would adversely affect or diminish the present open and undeveloped character of the Coalville-Whitwick-Swannington Green Wedge, identified on the Proposals Map. Appropriate uses in the Green Wedge are agriculture, forestry, minerals extraction and outdoor sport and recreation uses. Any built development permitted within the Green Wedge will be limited to minor structures and facilities which are strictly ancillary to the use of the land for these purposes.
53. The Council and most 3rd party objectors consider this the most directly relevant and important development plan policy in the appeal. The appellants accept that the scheme would conflict with it, but argue that it would nevertheless comply with several other saved local plan policies, and that in any event there are compelling reasons to make an exception to the Green Wedge policy (see section 7).
54. The local plan's housing provision, including its land allocations, extended only up to 2006, and is agreed to be out of date. It was not much discussed at the Inquiry."
3. The Claimants' submissions
a) they failed to apply the presumption in favour of sustainable development;
b) they failed to find that Policy E20 was inconsistent with NPPF;
c) they failed to hold that Policy E20 was a relevant policy for the supply of housing and accordingly out of date;
d) the Inspector wrongly determined that Policy E20 was a "specific policy" within the meaning of paragraph 14 NPPF;
"14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan making and decision- taking."
For decision taking this means [Footnote 10 "unless material considerations indicate otherwise"]: approving development proposals that accord with the development plan without delay; and where the development plan is absent, silent or relevant policies are out of date, granting permission unless:
- any adverse impact on doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted. [Footnote 9: "For example, those policies relating to sites protected under the Birds and Habitats Directive (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Greenbelt, Local Green Space, and Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets: and locations at risk of flooding or coastal erosion."]
"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 5 years worth of housing against their housing requirements with an additional buffer...;…"
"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."
"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)."
"322. Issue 1i) – the scheme's effect on the purposes, identity and character of the designated Green Wedge: For the Council and most of the 3rd parties, this is probably the most salient issue in the Inquiry. Andrew Bridgen MP said that, judging from his postbag, the prospective loss of the Green Wedge has been the single most contentious and generally unpopular planning proposal in the district in the last few years, since the Stephenson Green scheme first emerged. This was confirmed by WAG and by several individual local residents, all objecting to it…"
323. No third parties appeared at the Inquiry in support, and I have seen no evidence of any public support for it in any documents…
325. It is very clear that many local people greatly value this green area of open countryside on the edge of Coalville, and want to preserve its status as Green Wedge, which has protected it hitherto from development. They want to see that status maintained in effect, even if under another name, such as an Area of Separation (as mooted in the emerging CS). That is so even though the area in question is not designated in any statutory plan for its landscape or other intrinsic environmental quality.
326. I do not accept the appellants' argument that there is something inherently unsuitable, either in terms of its location and in terms of its characteristics, in a Green Wedge (or similar) planning designation for this particular tract of urban fringe countryside. This part of the Green Wedge is where it is simply because it separates urban areas (Coalville and Whitwick), and up to now has remained open, undeveloped and largely in agricultural use. Nothing in the appellants' evidence persuades me that there is anything illogical, inappropriate or out-dated in maintaining this land as a Green Wedge; rather, their evidence is directed at showing that it would be better put to residential use, as a "sustainable" urban extension…
327. In my view, the appeal site is a fairly unremarkable tract of countryside, largely comprising open fields, but with minor undulations and variations in topography and numerous hedgerows and individual trees. Nevertheless, it is by no means unattractive, and remains intact and unspoilt. It is still productively farmed, mainly for arable crops, and, as I saw during my own site visits, is almost nowhere degraded or abused by dumping, abandoned vehicles, fires, vandalism or other negative but typical manifestations and signs of the urban fringe.
328. It provides a variety of pleasant and unobstructed views, including many of the low wooded hills around Whitwick nearby to the north and east. Despite being subject to some traffic noise from the adjoining A511, much of it also lends an appreciable degree of rural tranquillity, which can be experienced on any of its public footpaths and in Green Lane.
329. And, crucially, it provides very clear separation between Coalville and Whitwick. In short, I consider that in general the appeal site functions well as a Green Wedge. To my mind, there is no obvious reason why it should not continue to do so well into the future.
330. So much for the land itself. In policy terms, post-Framework it remains subject to saved development plan policy E20, which is highly restrictive towards new development and is intended to keep the land predominantly clear and open, and in continued agricultural use. There is no doubt - and the appellants acknowledge this - that the appeal proposals conflict with this policy….
331. I am also in little doubt that, despite the large scale of the scheme, the appellants have gone to some lengths to design its layout with the intention of minimising and mitigating its impact on the Green Wedge. That is apparent from the original design exercises, beginning with the Princes Foundation report, and continuing through other reports and the lengthy, iterative and consultative design process described by Mr. Williams. [109-114]
333. I agree with the appellants that, technically, the scheme would not lead to the complete and unmitigated coalescence (or merging) of Coalville and Whitwick. That is largely owing to the inclusion of a linear series of green areas between the built-up parts of the appeal scheme and the two existing settlements, such that no new development would be juxtaposed with any existing areas of housing. The appellants place much emphasis on these areas of green infrastructure as attractive, usable but separating features which would render the scheme acceptable in the wider landscape.
334. However, to my mind and eye the overall effect of the scheme would still be tantamount to the (undesirable) coalescence of Coalville and Whitwick. The proposed development would be on such a scale that it would erode the Green Wedge to a very large extent. Little of it, in this eastern part, would remain intact and undeveloped.
335. Thus I agree with the thrust of the Council's and WAG's evidence and opinions on this matter. In place of a broad swathe of open land on the edge of Coalville, there would be a very large urban development with green edges….
336. I find, therefore, that the appeal scheme would have a very profound impact on the purposes, identity and character of this part of the designated Green Wedge. It would undermine its purposes, almost nullify its identity, and completely change its character. In short, and in large part it would be permanently lost. How much does this matter? Plainly it matters a lot to the Council, and to local residents and the general public. In my opinion, the Green Wedge here has served and continues to serve a useful and much valued planning purpose, and it should only be lost for very compelling land use planning reasons. I deal with this below, principally in relation to housing land requirements and supply.
337. Finally under this heading, the Framework contains many references to green infrastructure (a term defined in its glossary) and the need to protect it where this is consistent with the imperatives of development. I consider that, given its value as part of the Green Wedge, the appeal site should be seen as part, and a very important part, of the existing green infrastructure of Coalville and its environs. The presumption in favour of sustainable development (NPPF, para. 14 etc.) contains caveats applicable to decision-taking, including (in its footnote 9) a reference to the need to protect and conserve "Local Green Space". This is described further in the Framework paras. 76-77, which contain bullet-point criteria. According to these, the appeal site might in principle qualify for a Local Green Space designation, although, as noted elsewhere, the Council proposes to designate it as an Area of Separation in its CS."
12. For the reasons given in IR/322-337, the Secretary of State agrees with the Inspector that the appeal scheme would have a very profound impact on the purposes, identity and character of this part of the designated Green Wedge, and would undermine its purposes, almost nullify its identity, and completely change its character. He agrees with the Inspector that in large part it would be permanently lost (IR/336). He further agrees that the overall effect of the proposed development would, by eroding the Green Wedge to a large extent, be tantamount to the undesirable coalescence of Coalville and Whitwick (IR 333-334).
13. The Secretary of State notes that the period the NWLLP covers ended in 2006, but he agrees that the Green Wedge here has served and continues to serve a useful and much valued planning purpose, and that it should only be lost for very compelling land use planning reasons (IR/336). He further agrees with the Inspector that, given its value as part of the Green Wedge, the appeal site should be seen as a very important part of the existing green infrastructure of Coalville and its environs (IR/337)."
"Option 1 – Identify all three areas as a Strategic Gap or Area of Separation
This option recognises the role that the undeveloped areas play in restricting the physical merger of Coalville with the areas of Swannington, Thringstone and Whitwick. New development which would result in this physical separation being reduced would be resisted. In effect this would represent a continuation of the existing approach, albeit under a different policy."
"55. The emerging North West Leicestershire Core Strategy: At the time of the Inquiry, the Council was in the process of preparing the submission version of the CS. It was anticipated that this would be considered at a special meeting of the full Council in late April 2012, after which it would be subject to a regulation 27 public consultation.
56. According to [NWLDC7] submission is expected "in the summer of 2012" [Footnote 4: According to the Council's Framework submissions, this duly occurred, and the Council agreed to publish its CS for consultation prior to submitting it to the Secretary of State]. The appeal site, together with other parts of the existing Green Wedge, will be identified as an Area of Separation (using a term from the EMRP), and will not be allocated for any form of development."
Ground 2: Failure of consistency in decision-making
Ground 3: Prematurity
"216. From the day of publication, decision-takers may give weight to relevant policies in emerging plans according to:
the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);
the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and
the degree of consistency of the relevant policies in the emerging plan to the policies in the Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given."
"16. The Secretary of State has had regard to paragraph 216 of the Framework, which indicates the weight that decision-takers may give to relevant policies in emerging plans, as well as to the guidance in The Planning System: General Principles referred to by the Inspector. The Secretary of State notes the Inspector's reasoning at IR/351-356 and his conclusion that the appeal scheme would be of such a size and scale as to prejudice the outcome of the council's emerging Core Strategy and should therefore be considered premature (IR/357 and 378). In reaching his conclusion the Secretary of State notes that a pre-submission Core Strategy was published for consultation in May 2012 after the close of the inquiry. However, the Secretary of State agrees with the Inspector that the emerging Core Strategy should be given only limited weight (IR/312). As such he considers that this is a consideration which counts against the proposed development, but is not on its own determinative of the appeal."
Ground 4: Air Quality
a) wrongly interpreted the policies in NPPF as requiring him to treat any exceedance in NO2 levels as a reason for refusal of planning permission;
b) failed to take into account the mitigation measures offered by the Claimants or explain why the condition offered would not secure conformity with approach set out in paragraph 24 NPPF;
c) failed to have regard to a material consideration, namely that the planning authority had decided to allocate another site in Coalville (Bardon Grange) for substantial housing development when it was clear that this development would also create an exceedance in NO2 levels within the AQMA;
d) alternatively, failed to provide any or any adequate reasons as to why exceedance in NO2 levels was something that counted against the proposal when to his knowledge alternative development designed to meet the five-year housing land supply shortage had been sanctioned by the council despite the fact that it would lead to such exceedance.
"Planning policies should sustain compliance with and contribute towards EU limit values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan."
"…it is common sense that any large new area of housing will generate a significant amount of vehicular traffic, and hence vehicle emissions (and possibly other forms of air pollution). And any potential site near Coalville would give rise to some traffic passing regularly through the Stephenson Way/Broom Leys Road junction. Nevertheless, it is even more obvious that the appeal site is closest to it, and the AQMA, still the only one at Coalville. My conclusion is that, from the point of view of maintaining air quality, it is not a sensible location in which to build a very large and potentially polluting housing development."
"298. The appellants' additional (not agreed) conditions would require the submission and subsequent implementation of measures to mitigate the scheme's effect on air quality at the Broom Leys/Stephenson Way junction, consistent with the Council's AQAP. The Council objects to this on the grounds that the deleterious effect of the scheme on air quality could not be mitigated by such a condition, which lacks adequate precision. I agree. It might in principle be possible to draft an appropriate condition for this purpose, but such a condition is not before the Inquiry and I do not suggest any particular form of wording."
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."