COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION (Mr Justice Ouseley)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE JONATHAN PARKER
| R (on the application of Erine Kides)||Appellant|
|- and -|
|South Cambridgeshire District Council|
- and -
Beazer Homes Central Ltd
Miss Alice Robinson (instructed by the Solicitor for South Cambridgeshire District Council) for the Respondent
Mr Richard Drabble QC (instructed by Marrons for the interested parties) for the Interested Parties
Hearing dates : Thursday 25 and Friday 26 July 2002
Crown Copyright ©
Lord Justice Jonathan Parker :
1. Planning Policy Guidance Note 3 (“PPG3”), published by the Government in March 2000.
2. Government Circulars 13/96 (published in August 1996) and 6/98 (published in April 1998) relating to affordable housing.
3. The progress of the Council’s Local Plan Review, with particular reference to housing allocations and density. And
4. The fact that in May 1999 the airfield at nearby Oakington Barracks was declared redundant by the Ministry of Defence.
SECTION 70 OF THE 1990 ACT
“70(1) Where an application is made to a local planning authority for planning permission –
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally of subject to such conditions as they think fit, or
(b) they may refuse planning permission.
(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
THE PLANNING HISTORY
“I regard the land at Home Farm as being in every way the best site for the bulk of the residential land allocated in Longstanton. It is therefore essential that its western limits should be defined so that it can be formally allocated in the Local Plan. This can only be done by preparation of a line for the By-pass, which is something that the County council would not otherwise do in the near future. It is, however, agreed by them that the definition of the general route would not be unduly onerous, and I consider that this should be done as soon as possible so that the land with development potential could be defined. It would also have the advantage that the land to be safeguarded for the By-pass could be defined on the Inset Map and an appropriate safeguarding policy included in the Local Plan. This would, however, only be acceptable if there is a good chance of the By-pass being constructed during the Plan period.”
“.... that the County Council be asked to define a safeguarding line for the proposed Longstanton By-pass as soon as possible.”
“.... would prejudice and pre-empt the proper consideration and evaluation of all alternatives for future growth in the District during the statutory Local Plan review process.”
“.... to approve [the 1995 application], subject a report covering draft conditions and draft Section 106 Agreement being submitted for approval by Committee at a future meeting.”
“.... along with all representations and a copy of this agenda report which summarises progress to achieve [the 1995 resolution]”.
“The Article 14 direction has been issued, as it is considered that the significance of the development upon the village is such, that the determination of the planning application should be achieved in the context of the local plan review, which your Council is about to commence. The scale of the proposal indicates that it goes to the heart of the local plan’s roll-forward of housing land provision to 2006 and its determination at this time could be considered to be premature and prejudicial to the local plan process.”
“.... until negotiations upon the Section 106 Agreement have been successfully concluded.”
“Two areas totalling 21 ha are allocated for some 500 dwellings north of Over Road.
Development of this site will be dependent upon the provision of a development related bypass secured through a local agreement. The agreement shall ensure that no more than 250 dwellings will be occupied before the bypass – including all necessary junctions and road links to the existing highway network is complete.
“4.20 The [site at Home Farm] is not included within the requirements of affordable housing because it is the subject of a planning application where the Council has already resolved to grant planning permission under the provisions of the 1993 Local Plan without any requirements for affordable housing. At the time of the resolution, the Local Plan did not include a policy requiring affordable housing on allocated land and there was no affordable housing needs survey as required by government guidance. Any new planning application would not be subject to that resolution, and in the light of the high level of housing need identified by the District Wide Housing Needs Survey, it would be appropriate to consider whether affordable housing should be sought from this site. However, whether the site could stand the full 30% recommended by the survey, in addition to a bypass and other infrastructure, would need to be the subject of negotiations with the applicant.
67.18 The District Council considers that the provision of the bypass is crucial for the village and therefore allocated a larger area for a housing estate than would otherwise be appropriate. In this instance there is no requirement for affordable housing as set out in Policy HG9 because of the need to ensure the bypass and other community facilities such as a village green, shop and surgery.
67.20 The site of Home Farm, surrounded on three sides by existing housing, is considered appropriate for residential development. This would also enable the creation of a village green at the junction of Over Road and High Street. This, together with local shopping or community facilities which will be required because of the increased population, will allow the creation of a clearly identified centre to the village. However, the major area for housing development, as it will abut the bypass will require a high degree of screening and landscaping to reduce the visible impact and to create a satisfactory residential environment. ....”
“Development of this site will be subject to Policies HG9 .... and HG10 for the provision of affordable housing. Where affordable housing is required, planning permission or renewal of planning permission will not be granted until a legal agreement has been signed ensuring such provision.”
“Empty houses will soon become available at Oakington Barracks. A greenfield site should not be developed in advance of that event or any other decision upon the future of the barracks. Brownfield development should take precedence. The large scale of potential development would suggest that it would provide for a significant amount of off-site infrastructure, which might include a Longstanton bypass.”
“There have been material changes in circumstances since the resolution of the Council to approve the last application [a reference to the 1995 application]. These include:
- the emergence of the former airfield and barracks at Oakington/Longstanton as a likely area for large scale and comprehensive development within the reasonably near future;
- the publication of new Government guidance, such as circulars 1/97 and 6/98, which require different benefits from large schemes, such as affordable housing provision;
- a third major change is the proposals themselves, which do not propose a bypass for Longstanton.”
“12. The determination of the application would be premature in advance of the Public Inquiry into the Local Plan review, which would offer the appropriate forum to debate such a major issue.
13. The proposed development at Longstanton is a major departure from the adopted Local Plan and no justification has been given for this departure in advance of the Local Plan Inquiry.
14. Any approval of the application would pre-empt the proper consideration which must be given to the Local Plan review on a district-wide basis.”
“The application is now before the Secretary of State as an appeal for his decision. He has directed that the proposal does not require the submission of an Environmental Impact Assessment.
The Council cannot issue a decision notice [i.e. in relation to the 1999 application]. But it should consider its position on the principal merits of the scheme in order to put its case at any future inquiry.
The starting point is the Council’s resolution of 6th December 1995 that it was minded to approve a mixed development of 21 hectares housing (some 500 dwellings), 6.3 hectares business park, a B1050 bypass for Longstanton and related road works, extension to recreation ground (2.3 hectares), village green including land for local shop and surgery, open space, landscaping and related infrastructure. The Council considered that the provision of a bypass, financed by the development, outweighed the policy designations which would have limited the number of houses to be completed in the village to 250 allocated in the approved Local Plan 1993 and 400 houses normally permitted in a Rural Growth Settlement.
The Secretary of State’s decision of 1st August 1996 to allow the Council to determine the application as it deemed fit is of relevance.
The outline application would have been approved by now had the interested parties and landowners reached a financial settlement which would have enabled the Section 106 Agreement to be signed.
The Council needs to assess the new application against any material change in circumstances since those decisions on the earlier applications.
The principal changes are:
1. the publication of the [Local Plan] and the representations made to that Plan;
2. the publication of Government guidance in Circular 6/98 encouraging authorities to include policies in local plans for seeking an element of affordable housing on suitable sites; and
3. the application itself, which does not propose a complete bypass for Longstanton and which proposes housing .... on land not shown for such development on either the 1995 application or as part of a residential allocation in the Local Plan Deposit 1999.”
“Significantly, if the Regional Planning Guidance accepts the Panel’s Report suggestion that a new settlement should be accommodated to the north, but close to Cambridge, the proposals will need to be examined through the Structure Plan process and ultimately into the Local Plan. So it would be premature to advance Oakington Barracks in isolation or in the context of a new settlement in this Local Plan Review ....”
“1. It is not necessary to provide additional affordable housing in Longstanton for needs of Longstanton;
2. The community benefits from the provision of the Longstanton bypass and its capital costs are to be financed from the development allocated for Longstanton outweigh the need to provide affordable housing ....”
“In the consideration of the representations of the Deposit Local Plan it was suggested that any new planning application would not be subject to the earlier resolution (not to require affordable housing), and in the light of the high level of housing need identified in the District Wide Housing Needs survey, it would be appropriate to consider whether affordable housing should be sought from this site, though not necessarily the full 30% recommended by the survey.”
“.... because it would ensure the provision of the complete bypass at entirely the developer’s expense”.
A. that the Council reject the 1999 application on the grounds (1) that it did not provide for a complete bypass and (2) that it proposed housing development in a location which had not been allocated in the Local Plan and which was poorly related to the remainder of the village and services within it; and
B. that the Council seek to secure a proportion of affordable housing based upon housing needs, as part of a section 106 Agreement.
“The scale of development proposed is dependent upon the provision of a development related bypass. The District Council has resolved to grant planning permission in respect of a 1995 application [a reference to the 1995 resolution] without the need for affordable housing. However, it would be appropriate to consider whether this provision should be sought from this site if any subsequent planning application were to be submitted ..... Such a provision would be subject to negotiation with the applicant....”
“The site at Oakington Barracks is of strategic importance, which the panel report identifies would require a long lead in time, clearly beyond the time scale of this local plan. It would be premature to identify this site [i.e. Oakington Barracks] in advance of the agreement of a Cambridge Sub Region Strategy beyond the period to 2006.”
“31. In deciding which sites to allocate for housing in local plans and UDPs [unitary development plans] local planning authorities should assess their potential and suitability for development against each of the following criteria:
- the availability of previously-developed sites and empty or underused buildings and their suitability for housing use;
- the location and accessibility of potential development sites to jobs, shops and services by modes other than the car, and the potential for improving such accessibility;
- the capacity of existing and potential infrastructure ....
- the ability to build communities ....
- the physical and environmental constraints on development of land ....
Allocating and Releasing Land for Development
32. In determining the order in which sites identified in accordance with the criteria set out in paragraphs 30 and 31 should be developed, the presumption will be that previously-developed sites (or buildings for re-use or conversion) should be developed before greenfield sites. The exception to this principle will be where previously-developed sites perform so poorly in relation to the criteria listed in paragraph 31 as to preclude their use for housing (within the relevant plan period or phase) before a particular greenfield site.
Determining Planning Applications
38. In considering planning applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to the policy contained in this PPG as material considerations which may supersede the policies in their plan .... Where the planning application relates to development of a greenfield site allocated for housing in an adopted plan or UDP it should be assessed, and a decision made on the application, in the light of the policies set out in this guidance. Comparison with available previously-developed sites against the criteria in paragraph 31, and in the light of the presumption in paragraph 32 and the policies on design, layout and efficient use of land, including car parking, will be particularly relevant. Where a proposed housing development involves the use of a previously-developed site or the conversion of existing buildings, the proposal may need to be amended in accordance with this guidance, for example, in relation to design, layout, density and parking.”
“Negotiations hitherto have proved very difficult indeed and although the Parish Council has instructed solicitors to assist it in its broad deliberations, it is not clear that negotiations in the normal form will be completed and a planning permission issued in the foreseeable future. The development is important for Longstanton, not least because it will afford the provision of a bypass which is much needed but also because it will advance the housing provision in our district. This matter has gone on since 1995 and has been held up by what have been unsuccessful negotiations with the County Council as part landowner. Those negotiations have now at last been concluded and the County Council has decided to sell its interest in the relevant land to developers (subject to planning permission) thereby allowing the whole project to go forward. ....”
“Members welcomed the negotiations but expressed concern that extended discussions might significantly delay the process. The Head of Legal Services reiterated that a decision was expected quickly and that the issue would be returned to Committee in July if negotiations proved unsuccessful.”
“Paragraph 32 of [PPG3] makes it clear that whilst brownfield sites should be developed before greenfield sites, this should not be so where brownfield sites perform so poorly in relation to the criteria in paragraph 31. In the context of this study it is considered that sites in unsustainable villages [which included Longstanton: see below] fall into this category of poor performance. ....”
“.... There are a small number of villages where the Local Plan makes allocations in villages which do not meet the “sustainable” criteria. In each case there are specific reasons justifying the proposed development and these accord with criterion (4) of paragraph 31 of [PPG3], .... Thus:
- Longstanton, a Rural Growth Settlement designated in order to provide a much needed bypass, together with an extension to the recreation ground, a village green and a shop ....”
“This should not preclude the use of a lower (or higher) density if local circumstances dictated that there are material considerations to do so. These are:
- Longstanton where the Local Plan specifies a maximum of 500 dwellings within the agreed line of the proposed bypass and where planning permission has been agreed in principle [a reference to the 1995 resolution] and negotiations on the required Section 106 Agreement are close to completion. ....”
“57. PPG3 requires local planning authorities to consider increasing the density of new housing developments. Whilst densities of the order of 30-50 dwellings per hectare may be appropriate in urban situations, an average density of 30 dwellings per hectare is appropriate in most rural situations. The conclusion is therefore drawn that average notional density in South Cambridgeshire should be increased from 25 to 30 dwellings per hectare.
58. The suggested approach of increasing housing density and a revised assessment of windfalls leads to the conclusion that there should be a reduction in the overall level of housing allocations, and a number of sites are identified which could be deleted to bring the overall level to that which is necessary to meet the Structure Plan requirement.”
“Should existing allocations be reviewed?”
THE ARGUMENTS BEFORE THE JUDGE
The appellant’s contentions
The interested parties’ contentions
The Council’s contentions
THE JUDGMENT OF OUSELEY J.
“In my judgment it is a question of fact whether in the circumstances in any particular case the duty has been fulfilled. What actual steps have to be taken in order to fulfil it, as a matter of fact, depends on the circumstances of the case. Very often the circumstances will indeed require a formal Committee meeting to reconsider an earlier resolution in the light of new circumstances. However I do not accept that that is required in law if, on the facts of a particular case, it is possible to demonstrate that regard was had to material considerations in some other way.”
“The delegation of the consideration of new material considerations is not answer to the Appellant’s claim: first, no resolution generally or particularly delegating the necessary powers of determination was produced to me; and, secondly, a power to determine whether an application should be brought back to Committee and to deal with mechanical or trivial issues which might reasonably not require Committee consideration, is very different from a power to determine an application in these circumstances, where new factors of obvious significance had arisen.”
“.... inevitably objections to the development itself; consideration of them as policy objections necessarily involved consideration of the principle of the development”.
“.... considered and weighed on their merits and not dealt with as if, however sound they might be, the  resolution had sold the pass”.
“Density was specifically considered in relation to Longstanton and an exception to the general approach was indicated, not because of the 1995 resolution, but because of the purpose of the housing development and its relationship to services and the bypass.”
“The consideration of [PPG3] in the context of this study inevitably involved a consideration of the 1995 application – the maintenance of the allocation was not the consequence of the 1995 resolution but was the consequence of the consideration by the Council and its desire to see the development go ahead with the advantages which it would bring, some of which were relevant to PPG3 particularly in the context of a rural district with few brownfield sites available.”
“Oakington Barracks was not rejected as an objection because the [1995 resolution] precluded consideration being given to it; it was rejected because it did not have sufficient merit to warrant the allocation being deleted and hence to warrant planning permission being refused.”
“.... the substance of the consideration involved both the current and any potential fresh application and the substance of the conclusion was that the current application now enjoyed an agreed package in which the question whether or not to have affordable housing had been considered and rejected because of other and high development costs.”
“It is clear that the Planning Committee wanted the development rapidly to proceed. It obviously rejected the very notion that the grant of permission in 2000 following a resolution in 1995 was premature in relation to a Local Plan which was more advanced than it had been in 1995.”
“87. I accept that there was not one single meeting at which the new material considerations were formally considered as a group together with other relevant factors explicitly in relation to the 1995 application. This might matter if the Planning Committee had accepted the strength of individual objections on separate occasions which individually did not justify a change in decision, but which cumulatively might have done had they been so considered. However, here the Council did not accept that any of the new factors were justified or significant objections at all, let alone ones which taken together could lead to a different result.
88. I consider that the Council did fulfil its section 70 duty when granting planning permission in relation to all those material considerations. It considered them principally but not exclusively through the local plan process but it clearly maintained its view having considered each of them.”
“If I had granted permission, and if the affordable housing ground had been the basis of success for the appellant as a matter of law, I would have refused her relief in the exercise of my discretion for the reasons which I have given in relation to standing.”
THE ARGUMENTS ON THIS APPEAL
1. In relation to PPG3, he submits that the fact that the Home Farm site was not included in the list of sites where changes to the Local Plan were proposed is plainly indicative of the fact that the Council had considered the Home Farm site in the context of PPG3 and was of the view that there should be no changes in relation to that site.
2. As to Oakington Barracks, he submits that the position is substantially the same. The site at Oakington Barracks was not yet available for housing, and the prospect of its becoming available at some time in the future was not considered to be a factor of sufficient weight to justify any change in the Council’s thinking so far as the Home Farm site was concerned.
3. As to density, he reminds us that this was in any event a reserved matter.
4. As to affordable housing, he submits that the evidence establishes that the Council had regard to the two Government Circulars when considering the Local Plan, and that in so doing the Council addressed the question whether to require a provision for affordable housing as a condition of allowing the 1995 application but decided not to do so.
5. As to prematurity, he submits that had the Oakington Barracks site been available in the near future as a viable alternative site a prematurity objection might have some force, but on the evidence the Oakington Barracks site was not expected to become available for some time. Hence it was, as he put it, kicked into touch. He further points out that prematurity is relied on by the appellant as a reason for refusing planning permission; it is not contended that the Council should have merely adjourned further consideration of the 1995 application to enable it so wait and see how matters turned out.
“He is not obliged to go back to committee if his mandate remains good, as it will if the changes are small or if the original resolution remains consistent with the policy views of the council, albeit expressed in a different context. If it is clear that the council as a whole (including the officers holding delegated powers) are alive to the various changes of circumstances, the council will have regard to all material considerations at the date of issue; express reconsideration by the original committee is not necessary.”
“have regard to”
Lord Justice Laws:
Lord Justice Aldous: