B e f o r e :
THE HONOURABLE MR JUSTICE SCOTT BAKER
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| | HENRY BOOT HOMES LTD
| Claimant
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| | - and -
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| | THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
COTSWOLD DISTRICT COUNCIL
| First Defendant
Second Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Patrick Clarkson QC(instructed by Flint Bishop and Barnett) for the Claimant
David Forsdick (instructed by The Treasury Solicitor) for the First Defendant
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Crown Copyright ©
MR JUSTICE SCOTT BAKER:
The Claimant has applied to the Court under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash the decision of the First Defendant’s planning inspector of 6 April 2001. She refused to grant planning permission, on an appeal from the Second Defendant, to permit the erection of 19 residential units at the former Criddle Billington Feeds Site, Cirencester Road, Tetbury, Gloucestershire.
At the start of the decision letter the inspector identified the main issues on the appeal to her as:
i) The effect of the proposal on the availability of land for employment uses.
ii) Whether the proposal would meet the local plan requirement for affordable housing units.
Mr Patrick Clarkson Q.C, for the Claimant, has helpfully identified the four issues in the present application as follows:
i) Whether the inspector failed to determine a principal controversial issue in dispute, namely the consequences of the application of employment policy E5 of the Gloucestershire Structure Plan Second Review.
ii) Whether the inspector failed to give proper, adequate and intelligible reasons for her departing from, or failing to determine, a principal issue namely the supply and implications of the supply of employment land in Tetbury.
iii) In suggesting delay pending a Local Plan review the inspector misunderstood Structure Plan employment policy E5 and Government Guidance in PPG3.
iv) The inspector misunderstood the implications of viability and failed to deal with the submission whether, if permission is refused for housing, on the balance of probability the land will be used for employment according to the approach of Lord Bridge in Westminster City Council v BWB [1985] AC 676.
The appeal site is a redundant mill in the town of Tetbury. Permission was refused by the Second Defendant on the grounds of loss of employment land, affordable housing, noise and tree loss. Noise and tree loss were withdrawn as issues before the inquiry. The inspector found the Second Defendant had not justified the affordable housing case, so the central focus has become loss of employment land. This was why the Claimant lost the appeal.
The relevant plans are the Gloucestershire Structure Plan Second Review (GSP) and the Cotswold Local Plan (CLP). The former, dated November 1999, post-dates the later (August 1999).
By Section 70 (2) of the 1990 Act there is a requirement to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
The relevant policies in the plans are:
GSP
E1
“Provision will be made for a choice of employment sites to provide for flexibility and competition in meeting the social and economic needs of communities. This will be encouraged by the provision of employment land in each District in accordance with the following indicative distributions:
………………………..
Coltswold about 65 acres.
The aim of this policy is not to allocate an amount of land equivalent to that likely to be taken up in the plan period, (up until 2011) but to provide a supply through the local plan process which will not constrain investments. This needs to take into account a range of sites in terms of quality and locations in both local plan allocations and development proposals. Consequently the employment land estimates are not to be used with mathematical exactitude, nor as targets, as they represent an indicative distribution only. Providing indicative employment provision will require more emphasis on monitoring and review of local plan employment provision. To assist in this it is proposed that the County Council co-ordinate regular employment land availability studies.
The indicative allocation for the districts is considered to strike the right balance with the proposed housing distribution, taking into account existing commitments and the need to provide for a choice of employment sites.”
E5:
“Existing employment sites will be safeguarded for employment use except where the site is not required to meet existing or future employment needs, where employment use creates unacceptable environmental or traffic problems, or an alternative use or mixed-use development would offer local community benefits which outweigh the loss of the employment use.
The Government’s preference for the use of urban and brownfield land for housing development must not be at the expense of other employment and economic objectives of the Plan. Employment sites should be safeguarded in local plans to maintain confidence in local economies, to promote investment and stimulate new activities and economic regeneration. Only where it can be demonstrated that a site is not required for existing or future employment needs, its local environmental impact is unacceptable or the advantage of alternative development would outweigh any loss, should existing employment sites be lost to other uses.”
CLP
6.12:
“Tetbury: Employment Development.
1. Tetbury Priory and Hampton Street Industrial Estates, shown as Policy Areas, C, E and F respectively, are allocated for development within use class B1 provided the use does not generate significant numbers of trips by employees and, so long as there is no likelihood of harm to residential amenities or to existing businesses, and no unacceptable increase in the volume of traffic, use classes B2 and B8.”
There is a helpful plan attached (P163 of the bundle) that shows
the appeal site in policy area C.
The inspector rightly identified Policy E1 as providing for a choice of employment sites to achieve flexibility and competition in meeting the social and economic needs of communities. The aim of the policy was not to allocate an amount of land equivalent to that likely to be taken up during the plan period, but to provide a supply through the local plan process that would not constrain investment. There was a need for a range of sites in terms of quality and location in both plan allocations and development proposals. She pointed out that Policy E5 aimed to safeguard existing employment sites for employment use except in the circumstances indicated. The Government’s preference for the use of brownfield and urban land for housing development is not to be at the expense of other employment and economic objectives of the Plan. Employment sites should be safeguarded.
The starting point is that the appeal site lies in an area allocated for employment development so long as there is no harm to residential amenities or to existing businesses and no unacceptable increase in the volume of traffic.
Ground 1 – Employment Policy.
The Claimant contends that the inspector failed to take into account or take properly into account certain benefits that would follow from the proposed development and to which it drew attention at the inquiry. It was common ground at the inquiry that the existing buildings on the site were redundant. The mill is currently surrounded on 3 out of 4 sides by houses and, as Mr Clarkson pointed out, it is in an Area of Outstanding Natural Beauty. Such an area, in the Cotswolds, includes towns and not just the countryside. There are 3 ash trees, the subject of Tree Preservation Orders that would survive housing development but would be unlikely to survive development as employment land.
Whatever development takes place on the site, employment or housing, the planning authority will have power to control it in order to avoid unacceptable environmental problems.
The issue at the inquiry was whether the appeal site fell within any of the exceptions to Policy E5 that safeguards employment sites. The Claimant’s case was that housing development was justified on each of the 3 grounds of exception – not required to meet existing or future employment needs, local environmental impact unacceptable, advantages of alternative development would outweigh any loss. The Council’s response was that the site was required to meet future employment needs, employment use would not create unacceptable environmental problems and that any local community benefits did not outweigh the need to maintain the site as part of the overall supply of employment land.
The real thrust of the Claimant’s first ground is that the inspector failed to identify the benefits of the proposed development and weigh them against the loss of employment land, the particular benefits being, houses that were needed would be provided, a bad neighbour would be removed, a development more sympathetic to an area of outstanding natural beauty would be created and the ash trees would survive. Brownfield, previously developed land, would be brought into beneficial use. All these things outweighed the loss of employment land which was not needed anyway. These are in my view matters of planning judgment and there is no obligation upon an inspector to indulge in a minute examination of every detail in a planning policy.
It seems to me that Mr Clarkson has sought to elevate these so called benefits to a greater status then they deserve. In his final written submissions to the inquiry they take up just one and a half short paragraphs out of sixty six. At the hearing before me Mr Clarkson made the additional point that lorries would be more intrusive from an employment site than a housing development.
The Inspector made clear in paragraph 19 her view that re-developing the site for housing carried no significant benefit to the public over its redevelopment for employment use.
She said:
“In the light of the fact that the buildings on the site are beyond economic use, any future employment development on the appeal site would require planning permission. In view of its location adjacent to residential development, any such development would have to be designed or conditioned so has not to generate unacceptable environmental problems. Therefore I do not accept the contention that the proposal would remove a bad neighbour use.”
She clearly had policy E5 in mind. Indeed she referred to it in the very next paragraph of the decision letter. It was the Claimant’s case that the proposed development would secure a contribution towards the local supply of affordable housing. The inspector concluded that while there was an acknowledged need for some affordable housing, the evidence did not substantiate an overriding need for housing land in Tetbury sufficient to outweigh the employment and economic objectives of Policy E1.
Whilst it is true that the inspector made no specific reference to the ash trees, or to the area being one of Outstanding Natural Beauty, she was not in my judgement required to refer to every point, however small. At best these points would have been no more than very small pebbles in the scales weighing the Policy E5 balance. The decision letter indicates she had Policy E5 well in mind and applied it appropriately.
Mr Clarkson makes the point that while the inspector acknowledged the need for some affordable housing she found no “overriding” need. She failed, he says, to descend to the issue of housing need in the local community context as required by E5. Overriding housing need, he submits, is not the E5 test. In my judgment, however, what the inspector was doing was looking at E5 and concluding that there was nothing that overrode the fundamental position that employment sites should be kept for employment use.
Ground 2 - Employment need.
The Claimant’s case is that the inspector failed to conduct a proper analysis of whether the appeal site was required to meet existing or future employment needs. Employment need lies at the very heart of E5. That this issue was central to the outcome of the appeal is not disputed. The appeal site was not required for existing employment needs. The issue was as to the future.
The inspector’s approach was that at January 2001 the total supply of employment land within the district was 63 hectares compared with the GSP figure of 65 hectares and that taking into account the loss of employment land due to the erection of a Tesco store in Tetbury the shortfall at the time of the appeal was about 4 hectares. She made the valid point that no objection had been made to the allocation of the appeal site for employment either in the deposit draft of the current local plan or in the review of that plan that was then underway. Within Tetbury, land allocated for employment amounted to the appeal site and about 5 hectares of undeveloped land. Absent the appeal site, the scope for any new employment development would in effect be restricted to a single greenfield site in single ownership (the Bison site). The underlying policy of E1 is to provide for a choice of sites to achieve flexibility and competition. Giving up the appeal site to housing would run completely contrary to this policy.
Mr Clarkson relied on the Second Defendant’s internal memorandum of 14 January 2000 which said it was difficult to see how the redevelopment of the appeal site for housing could justifiably be refused and that it would be difficult to object to the principle of residential development. This, he said was inconsistent with the Second Defendant’s refusal of permission. He also relied on the Secretary of State’s decision letter in the Tesco application whereby employment land was released for a food store in November 1999. In short he submitted that the inspector did not take into account that there was an oversupply of employment land for Tetbury and substantial floor space in existing buildings which suggested no need.
In my judgment, no valid criticism can be made of the inspector’s approach. She looked at the quantitative position but clearly had in mind (paragraph 7) that employment land estimates were not to be used with mathematical exactitude. Importantly, she had in mind the need to maintain flexibility by not diminishing what was available for employment development and that if the appeal site went what would be left would be a single greenfield site. She found (paragraph 16) that the evidence whether the appeal site was required for present or future employment use was somewhat inconclusive. She was in my view entitled to conclude that making the site over to housing was not justified where the consequence would be to force any future employment development in Tetbury onto a single greefield site.
The Structure Plan policy is that a bank of land should be retained for future employment needs. The appeal site is designated as land in that bank and there was no good reason in this case for raiding that bank and diminishing the amount of available employment land. That is what lay at the heart of the inspector’s decision and in my judgment her conclusion was based on a proper understanding of the employment policies in the Structure Plan.
3. Local Plan Review
The complaint here is that the inspector said if she accepted there was an oversupply of employment land in Tetbury it was a matter for the Local Plan Review to decide how and where the existing location should be changed. She noted that no objection had been raised to the appeal site being allocated for employment in the deposit draft of the current local plan nor had any been raised in the review of the local plan, currently underway. As that was due to go on deposit in the Autumn (2001) that was an appropriate time for the council to consider whether the appeal site might be better used for housing or mixed use development.
The inspector’s observation about the forthcoming local plan review was prefaced by the words: “even if I were to accept that an over supply of employment land exists in Tetbury”. It is plain that she had in fact reached no such conclusion and the evidence about the need for the appeal site as employment land was, as she put it, “somewhat inconclusive”. She was perfectly entitled to take account of the forthcoming plan review in the manner that she did. She was not by doing so abdicating her responsibility to apply the policy E5. All she was doing was saying that that was the time to decide whether changes to the allocation were appropriate.
4. Viability
One of the issues at the inquiry was whether the appeal site could sustain a viable employment development. The Claimant said that it could not; the council said that it could. Both sides led evidence on the issue. The inspector said that any redevelopment would involve demolition of the existing buildings and that, because of the contamination and ground conditions, any new buildings would be likely to require piled foundations which would reduce the value of the land for employment purposes, but that there would be similar costs with a residential development. She said that while she was given appraisals of the cost of buildings for employment use she was not given comparable costs for housing development and that there was not enough evidence to suggest the site would be any less viable for employment than housing. Mr Clarkson submits that she did not understand the submission about viability; it would have been surprising if housing was not viable bearing in mind the Claimant’s efforts to undertake the development. But in my view all the inspector was saying was that she was not satisfied the site would be any less viable for employment purposes than it would be for housing purposes. She was entitled to take this view on the evidence she heard.
The question of viability arose in the context of Policy E5. What she had to consider was whether for economic or commercial reasons the site was unlikely to be redeveloped and brought back into employment use. What the inspector found, as in my judgment she was entitled to, was that the economic case against retaining the site for employment under Policy E5 had not been made out. It is true that the site had not been marketed for employment albeit an adjoining occupier had expressed an interest in it. It is, in my judgment difficult to show a lack of demand where there has been no testing in the market place.
Mr Clarkson criticises the inspector for not following the approach of Lord Bridge in Westminster City Council v BWB [1985] AC 676 i.e. that the test is whether if permission is refused for housing the land will on the balance of probability be used for employment. That was a case, however, that concerned an application for a new tenancy under Section 30(1)(g) of the Landlord and Tenant Act 1954. The circumstances there were far removed from the circumstances of the present case. Mr Clarkson relied on a passage from Lord Bridge’s speech at 683F:
“In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show on the balance of probability that, if permission is refused for use B, the land in dispute will effectively be put to use A.”
But this case was not a simple contest between the planning merits of two competing uses. This case concerned the application of structure plan policy and in particular E5 the safeguarding of existing employment sites for employment use other than in instances where certain exceptions bite.
I agree with the First Defendant’s submission that this ground of challenge is misconceived. The inspector was not obliged to find whether it was more likely than not that the site would be bought back into employment use in the event that the appeal failed. In my judgment the approach that she took was entirely appropriate.
Conclusion
In my judgment there is no substance in any of the Claimant’s points either individually or collectively. It is important to read the decision letter as a whole. Having done so, it is in my judgment plain that she grasped and decided the central issues on the appeal. She was not required to analyse and deal with every point advanced by the Claimant (for example possible loss of 3 trees). The issue at the core of the appeal was the effect of the Claimant’s proposal on the availability of housing land for employment uses. She was fully entitled to reach the conclusion that she did and accordingly this application fails. The First Defendant’s costs are agreed at £4,632.75 and I order that the Claimant pay the First Defendant’s costs which I assess in that sum.
