ON APPEAL FROM QUEEN'S BENCH DIVISION,
Mr Justice Silber
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE LEWISON
| R (on the application of TW LOGISTICS)
|- and -
|TENDRING DISTRICT COUNCIL
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ANGLIA MALTINGS (HOLDINGS) LIMITED
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Mr David Altaras (instructed by Holmes & Hill LLP) for Respondent 1
Mr Rhodri Price Lewis QC (instructed by Howes Percival LLP) for Respondent 2
Hearing date : 16 January 2013
Crown Copyright ©
Lord Justice Lewison:
i) Planning decisions must be made within the parameters of development plans authorised by statute. These exist at different levels in a hierarchy.
ii) In our case the relevant statutory development plan is the Local Plan; the relevant policies of which have been saved pending the formulation of new development plan documents.
iii) A planning authority is required to set out its policies for the use and development of land in its development plan.
iv) In making planning decisions a planning authority must have regard to the provisions of the development plan, so far as material to the application; and any other material consideration. Decisions must be made in accordance with the plan unless material considerations indicate otherwise.
v) In relation to conservation areas, the planning authority has a statutory duty from time to time to formulate and publish proposals for the preservation and enhancement of the conservation area. The CAMP was produced in order to comply with this duty. It is not part of the development plan.
vi) Each tier of the development plan is required to be generally consistent with the tier above. Likewise a planning authority's planning policies must be consistent with the development plan.
vii) Whether a tier of a development plan is consistent with a tier above, and whether a published policy is consistent with the development plan are each a question of the interpretation of the plan or policy in question. The interpretation is objective. The planning authority does not have a discretion to decide for itself what the documents mean. If there is a dispute about what they mean then ultimately the court must decide.
viii) The CAMP does not itself contain policies, but in so far as the proposals contained in it are inconsistent with policies in the Local Plan those proposals are unlawful.
"New development in the Mistley Urban Regeneration Area will be required to:
i. Provide for promotion of a balanced community, including an appropriate range of opportunities for the protection and enhancement of the historic environment (having particular regard to the maritime heritage of the area) and the provision of new housing, employment, tourist, recreation and leisure facilities;
ii. Protect the employment base of Mistley through the provision of alternative employment facilities to replace any potential loss of employment;
iii. Protect the port operations;
iv. Have regard to the potential for port uses of existing buildings, before allowing any change of use;
v. Allow for access arrangements which do not increase current levels of HGV traffic on the Highways Act Street;
vi. Provide or allow for sustainable and managed public facilities and non-motorised public access to the waterfront, including a public footpath link in all the non-commercial areas and a public right of mooring along the quayside;
vii. Enable the development of views across the Stour Estuary; and
viii. Protect the adjoining nature conservation interests, biodiversity and landscape quality during construction work and thereafter.
New development at the western end of the Urban Regeneration Area must respect the character and setting of the Mistley Towers Scheduled Ancient Monument.
To promote new development in accordance with these requirements, the Council will prepare a Supplementary Planning Document for the Mistley Village and Waterfront area."
"Policy ER3 – Protection of Employment Land
a. The Council will ensure that land in, or allocated in this Plan for employment use will normally be retained for that purpose. Its redevelopment or change of use for non-employment purposes will only be permitted if the applicant can demonstrate that it is no longer viable or suitable for any form of employment use. The applicant should either:-
Submit evidence of a sustained but ultimately unsuccessful marketing exercise, undertaken at a realistic asking price; or
Show that the land (site, or premises) is inherently unsuitable and/or not viable for any form of employment use.
b. Where the loss of an employment site is permitted, the applicant will normally be expected to provide a suitable alternative site elsewhere in the district, or a financial contribution towards the Council's employment, training or regeneration programmes and initiatives.
c. This policy will not be applied where vacant business premises form a subordinate but integral part of an existing dwelling in the same ownership."
"Within [the Urban Regeneration Areas] permission will be granted for development that reinforces and/or enhances the function, character and appearance of the area and contributes towards regeneration and renewal. In particular the Urban Regeneration Areas will be the focus for:
i. Investment in social, economic and transportation infrastructure; and
ii. Initiatives to improve vitality, environmental quality, social inclusion, economic prospects, education, health, community safety and accessibility.
Planning permission will not be granted for development that would have an adverse impact on the revitalisation of any of these Urban Regeneration Areas."
"6.22 There are mixed views on the industrial aesthetics of the silos on the Crisp maltings site on the metal sheet cladding of the Thorn Quay warehouse, but there is general agreement that the Stockdale warehouse at the western end of Mistley Quay does not enhance the setting of the Mistley Towers. …
Encourage the redevelopment of buildings which have a negative [effect] on the character or appearance of the conservation area as and when they become ready for renewal."
"6.59 A number of improvements, some public and some private, would make a welcome difference to the appearance of the conservation area. The likelihood of schemes coming forward is, of course, increased where arrangements are linked to development opportunities. The most significant possibilities are:
Significant improvements to Mistley Quay would include a more pedestrian-friendly public realm and the removal of the fence along the quayside. This could be achieved through reorganisation of the port and the re-use/redevelopment of the Thorn Quay Warehouse."
"7.8 … capital projects are vital for raising confidence. Perhaps the most important are the development of the Jewson's site … and, at Mistley, … the Mistley Thorn warehouse."
"TQW [i.e. Thorn Quay Warehouse] is capable of use in its current form for port uses. However, the aspirations in the CAMP and the SPD for TQW have resulted in the owner withholding permission for me to complete essential surveys to allow a valuation on the premises which reflects LMM1 (iv). Indeed the Council have confirmed that the owner of TQW will imminently submit to them a redevelopment scheme for TQW. It is obvious that a port use could not compete financially with either a mixed use conversion or a mixed use redevelopment. A redevelopment could not, viably, be for port related uses."
"Problems with the existing building
The existing Thorn Quay building is a dated warehouse, which is in poor condition and is not practical or well suited for storing goods.
In the existing building it will prove extremely difficult to bring pallets in and the current building offers poor floor to ceiling heights. The floor to ceiling heights severely restrict the loading and storage ability as do the numerous columns within the space itself.
Floor loading capacities are also another consideration. In the subject building this will again be compromised as its loading capacity is likely to be significantly lower than modern levels because of its flooring arrangements.
The current building was constructed between the 1930s and 1960s. In industrial/warehousing terms it would be regarded as having reached the end of its useful economic life and be close to being obsolete."
i) The Local Plan properly construed in its context provides that the quayside area is first and foremost for port related uses and not for mixed use "regeneration" schemes or for enhanced public access. Policy LMM1 iii and iv properly construed means that a change of use of an existing building cannot be allowed unless and until all port related uses have been excluded. The CAMP is based on the misconceived premise that the Local Plan promotes mixed use development on the quayside.
ii) The CAMP promotes "redevelopment" (as a "key", "capital" project) of Thorn Quay Warehouse. Any such redevelopment of Thorn Quay Warehouse would necessarily be for non-port related use because on the evidence of Mr Parker any re-development for port related use would not be viable. The promotion of "redevelopment" in the CAMP is therefore necessarily inconsistent with the Local Plan properly construed.
iii) The CAMP promotes the "reorganisation of the port" and has "proposals" to further that.
iv) The CAMP approaches industrial scale port buildings as if they are harmful to the conservation area and aims to remove or replace them, when in fact the Local Plan recognises that the quayside is and will remain first and foremost an operational port with the character and appearance of an operational port which necessarily means that there will be major warehouse buildings on it. The CAMP therefore starts from an aspiration as to the future of the quayside which is inconsistent with the Local Plan.
"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. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, 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."
"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 759, 780 per Lord Hoffmann)."
"It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given."
"In respect of the Council's obligation in respect of considering "the potential for port uses of existing buildings before allowing any change of use", I do not consider after applying Lord Reed's comments [in Tesco], that the obligation imposed on the Council in relation to the potential for port use of existing buildings, goes further than "taking it into account" even in the light of the factors mentioned by Mr. Forsdick in his submissions. The Council is not required to consider this factor in LMM1(iv) as the sole or exclusive factor so that no other factor can be considered before this LMM1 (iv) factor is considered. What is quite clear is that there is no provision in LMM1 (iv) or elsewhere in LMM1 ensuring that the approach of the Council in handling applications for developments for buildings not used for port purposes should be that "the quayside area is first and foremost for port related uses"."
"The stark fact which answers all Mr. Forsdick's complaints is that the CAMP does not make policy and it does not promote any type of development or prevent the Council in the words of LMM1 (iv) having "regard to the potential for port uses of existing buildings before allowing any change of use". Each of the matters which are the subject of the claimant's complaints is dealing with conservation protection and enhancement issues, which is the essential purpose of the CAMP. In concluding that nothing in the CAMP is inconsistent with the policies in the saved plan, I have not overlooked any of the complaints made by Mr Forsdick but none of them are inconsistent with LMM1 (iv)."
Lord Justice Aikens:
Lord Justice Mummery: