QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|REDROW HOMES (EASTERN) LIMITED||Claimant|
|(1) THE FIRST SECRETARY OF STATE|
|(2) SWALE BOROUGH COUNCIL||Defendant|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR P BROWN (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
Crown Copyright ©
"The main priority for the Local Plan must be to identify sufficient land to meet Structure Plan requirements. For the Isle of Sheppey, this is set in the medium- to long-term above local trend requirements and reflects the need to support the economic development potential identified for the Island within the context of the Thames Gateway Planning Framework. These figures represent a marked contrast to provision in the previous plan, where allocations were limited to below Structure Plan requirements to reflect local building rates.
4.3.2 In locational terms the priorities have been to ensure that development is sustainable as far as possible. This includes ensuring that sites are well related to employment and infrastructure provision, avoiding the best of the natural environment and those areas at risk of flooding or erosion. Where possible, priority has been given to the re-use of land within the existing urban areas boundaries to minimise the loss of greenfield sites."
"The opportunity also exists to extend the adjacent park at Abbey Rise for the benefit of existing and future residents. A significant proportion of the overall open space requirement required for this site will be expected to be put to this use. The extension westwards and northwards of Abbey Rise park, will also form an extension to the existing Local Landscape Area, the current extent of which is shown on the Proposals Map. In determining the extension of the Local Landscape Area, the Borough Council will have regard to the relationship with the proposed housing (and any reduction thereof) and ensure that it retains adequate separation between the settlements of Minster and Halfway."
Policy H30 deals with access arrangements to the Danley allocation, and also refers to the need to extend the Abbey Rise Local Landscape Area.
"... introduces a new approach to planning for housing which, for most authorities, will mean that their development plan will require early review and alteration in respect of housing."
Under the heading "maintaining a supply of housing", paragraph 21 states that:
"The Government is committed to promoting more sustainable patterns of development, by:
. concentrating most additional housing development within urban areas;
. making more efficient use of land by maximising the re-use of previously-developed land and the conversion and re-use of existing buildings;
. assessing the capacity of urban areas to accommodate more housing;
. adopting a sequential approach to the allocation of land for housing and development;
. managing the release of housing land; and
. renewing existing allocations of housing land in plans, and planning permissions when they come up for renewal."
Dealing specifically with the reuse of urban land and buildings, paragraphs 22 and 23 say in part:
"The Government is committed to maximising the re-use of previously-developed land and empty properties and the conversion of non-residential buildings for housing, in order both to promote regeneration and minimise the amount of greenfield land being taken for development.
23. The national target is that by 2008, 60% of additional housing should be provided on previously-developed land and through conversions of existing buildings. ..."
"In deciding which sites to allocate for housing in local plans and UDPs, local planning authorities should assess their potential and suitability for development against each of the following criteria:
. the availability of previously-developed sites ...
. the location and accessibility of potential development sites to jobs, shops and services by modes other than the car ...
. the capacity of existing and potential infrastructure, including public transport, water and sewage, other utilities and social infrastructure (such as schools and hospitals) ...
. the ability to build communities to support new physical and social infrastructure ...
. the physical and environmental constraints on development of land, including for example ... flood risk ..."
Under the heading "Allocating and Releasing Land for Development", paragraphs 32 and 33 advise local authorities:
"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 planning period or phase) before a particular greenfield site.
33. Local plans and UDPs should include policies for the release of sites for housing development according to the order of priority set out in the first sentence of paragraph 32. This should take account of the likely supply of windfall sites. Local authorities should manage the release of sites over the planned period in order to control the pattern and speed of urban growth, ensure that the new infrastructure is co-ordinated with new housing development and deliver the local authority's recycling target."
"Sufficient sites should be shown on the plan's proposals map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. Site allocations should be reviewed and updated as the plan is reviewed and roll forward at least every five years. Local planning authorities should monitor closely the uptake of both previously-developed and greenfield sites and should be prepared to alter or revise their plan policies in the light of that monitoring. However, it is essential that the operation of the development process is not prejudiced by unreal expectations of the developability of particular sites nor by planning authorities seeking to prioritise development sites in an arbitrary manner."
"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 (see paragraph 54 of PPG1). Where the planning application relates to development of a greenfield site allocated for housing in an adopted local 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."
"If the development plan contains material policies or proposals and there are no other material considerations, the application or appeal should be determined in accordance with the development plan. Where there are other material considerations, the development plan should be the starting point, and the other material considerations weighed in reaching a decision. One such consideration will be whether the plan policies are relevant and up-to-date (the age of the plan is not in itself material). The plan may, for example, have been superseded by more recent planning policy guidance issued by the Government."
"The site is greenfield land, based substantially on a Local Plan housing allocation (LP Policies H28 and H30). PPG 3 was published too late to influence the main content of the Local Plan although certain PPG 3 principles, including the need to make the best use of brownfield land, are consistent with the objectives of the Local Plan."
"(1) The site is located on the edge of the existing developed area of Minster on land that is not previously developed land. Notwithstanding its allocation in the Swale Borough Local Plan, the release of this site for local development is contrary to the objectives of Planning Policy Guidance Note no. 3, which give priority to the re-use of previously developed land within urban areas. There are no circumstances that would justify the release of this site before the development of alternative previously developed sites within the existing developed areas on the Isle of Sheppey.
(2) The proposal to develop this site in the manner proposed will prejudice the definition of the countryside gap for the area between Queenborough, Sheerness, Minster and Halfway, as advocated in Policy E10 of the Swale Borough Local Plan."
"(i) Whether the release of the site for residential purposes would accord with advice in Planning Policy Guidance: Housing (PPG 3) concerning the use of brownfield sites in preference to greenfield sites.
(ii) Whether the development of the site in the manner proposed would unacceptably erode the openness between the settlements of Halfway and Minster." (Paragraph 4 decision letter)
"... that the release of the site for residential purposes would not accord with advice in PPG 3 in concerning the use of brownfield sites in preference to greenfield sites."
"... that the development of the site in the manner proposed would unacceptably erode the openness between the settlements of Halfway and Minster."
"Because of my conclusions on the main issues, I conclude overall that the proposal is unacceptable."
He therefore refused planning permission.
"In my opinion, the built development proposed would encroach too far eastwards. At its closest it would be only some 160 metres from the houses on Appleford Drive, a distance less than the width of many open spaces within settlements, including the nearby school playing fields."
"I see no objection to the principle of land raising as flood protection. However, in common with other boundary options, adopting the KCC boundary would demand careful consideration of the manner of transition from existing levels to those of the raised land. The southern part of Field II would be available for housing development, as would the northern triangle (Field VI), and access could be taken off Minster Road as proposed. With appropriate density, the capacity of the land developed for housing could approach the allocation figure."
Having rejected the council's alternative boundary in paragraph 47, the inspector said in paragraph 48:
"In these circumstances, I find that the proposal would conflict with the aims of LP Policy E15 (protection of the LLA from development which would undermine its integrity and character); LP Policy E10 (prevention of the unacceptable erosion of the openness of an important countryside gap); and LP Policy H30 (extension of the LLA to retain adequate separation between Minster and Halfway). I conclude, on the second main issue, that the development of the site in the manner proposed would unacceptably erode the openness between the settlements of Halfway and Minster.
"Field VI is not currently available for development because of land ownership constraints, it is the part of the allocated site with the greatest archaeological potential, and it is unsuitable for land raising. It may well therefore not come forward by 2006. If it does, it could yield around 20 dwellings, assuming that the set-back required from the field boundary to enable the necessary construction level to be achieved was not too great."
"The development plan comprises the Kent Structure Plan 1996 and the Swale Borough Local Plan adopted in July 2000. The policies considered relevant by the main parties are identified in [an appendix to] the Statement of Common Ground (Document 12)."
Document 12 listed the development plan policies, and recorded the parties' agreement that "subject to the provisions of PPG3 it is agreed that all policies referred to satisfy the full weight of section 54A of the Act."
"PPG 3 advises in paragraph 38 that, in considering applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to PPG 3 policy as material considerations which may supersede the policies in their plan. Where the planning application relates to development of an allocated greenfield site, it should be assessed in the light of the policies set out in the guidance. Paragraph 32 notes that the presumption will be that previously-developed sites should be developed before greenfield sites except 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."
As mentioned above, paragraph 38 of PPG3 refers in turn to paragraph 54 of PPG1 which gives practical guidance as to how to give effect to the requirements of section 54A. During the course of his consideration of the first issue the inspector referred, under "Housing Land Supply", to the requirements of the structure plan:
"The Structure Plan requirement is for 3,300 houses within the Isle of Sheppey planning area by 2006. It is clear, from figures presented to the Inquiry, that this is unlikely to be met, even with the use of allocated greenfield sites and the additional capacity derived, on any interpretation, from the Urban Capacity Study (UCS)." (Paragraph 23)
"... that the release of the site for residential purposes would not accord with advice in PPG 3 concerning the use of brownfield sites in preference to greenfield sites."
"... that to produce an out-turn even approaching the Structure Plan housing requirement figure necessitates the urgent release of the appeal site. Moreover, the urgency invites consideration of a decision in advance of the Inspector's report into objections to the Local Plan."
The Secretary of State disagreed with the inspector's recommendation and refused planning permission on PPG3 grounds. On the developer's application to the High Court to quash the Secretary of State's decision there was debate as to the interrelationship between the advice contained in paragraphs 32 to 34 and 38 of PPG3. Having referred to the advice in paragraph 38 that a comparison with previously-developed sites in the light of the presumption in paragraph 32 would be particularly relevant, His Honour Judge Rich said this in paragraph 21 of his judgment:
"That presumption is that such sites 'should be developed before greenfield sites'. But, having regard to the way the presumption is applied by paragraph 38 and the specific words of paragraph 34, warning against prejudice to a development process by unreal expectations or arbitrary prioritisation, it would, in my judgment, be an impossible construction of paragraph 32 if it requires the prohibition of any greenfield development as long as any brownfield sites capable of development remain to be developed. The presumption must be read as being subject to the objective to provide sufficient housing land in accordance with the provisions of the approved development plan so far as applicable."
"Let me say at once that if the Secretary of State had accepted that refusal of planning permission would result in a major undershoot [of the structure plan requirement] but, in his judgment, that it did not matter, that would, subject to his giving reasons and complying with s.54A of the Act, have been within his powers. He did not, however, proceed on that basis ..."
"The finding of fundamental conflict means, therefore, that the Secretary of State construes paragraph 32 as requiring refusal of planning permission for a greenfield site unless the applicant satisfies the decision maker that there is no brownfield site capable of development in priority. This, for the reasons which I gave in my exposition of the terms of the PPG, cannot be the true meaning of paragraph 32, which, apart from the other indicia in the PPG to which I referred, has to be read subject to paragraph 34. This requires sufficient sites to be shown for at least five years. Thus, where brownfield sites do not provide such supply, a sufficiency of greenfield sites should be identified. If they are not so identified, and supply is not then monitored as that paragraph envisages, the operation of the development process will be prejudiced in the manner that paragraph 34 warned against. Such misinterpretation or misapplication of paragraph 32 is therefore, in my judgment, a further error of law disclosed by the decision letter in thus having regard to an immaterial consideration."
"PPG3 does ... require Development Plan needs to be met and, where it is apparent that greenfield land must be released in order to meet those needs, paragraph 32 of PPG3 should not be used arbitrarily as a means of prioritising brownfield land over Greenfield land where the result would be prejudice of the development process and to meet housing need. ... Paragraph 34 is a relevant factor against which the presumption in paragraph 32 must/may be balanced." (See paragraphs 14 and 15 of the judgment of Carnwath LJ, with whom Buxton and Simon Brown LJJ agreed.)
"Whilst many of the UCS sites have difficulties, they have the general advantage of being more central to shops and most other facilities, and to public transport and employment opportunities. In my view, none perform so poorly, in relation to the paragraph 31 criteria, that the appeal site would be preferred."
It will be seen that in that passage the inspector was faithfully applying the advice set out in paragraph 32 of PPG3.
"24. However, the Isle of Sheppey is an area of relatively high unemployment. Although much lower than the very high levels of a decade ago, unemployment is still high compared with other areas in the region, being more than 50% higher than the average for Kent. There is also a need to increase employment in the area for regional, strategic reasons. The Thames Gateway PLanning Framework (RPG 9a) advises, in paragraph 6.11.4, that the development plan should bring forward an adequate supply and range of new housing on Sheppey to support economic development. Very little employment land has been taken up in recent years and employment development is falling short of the strategic requirement set out in the Structure Plan by a very large margin.
25. In turn, it is generally accepted that demand for employment floorspace is being held back by the delay in relieving the severely congested Swale crossing, the only road and rail link between Sheppey and the mainland. Information to the Inquiry indicated that construction of the second crossing would now start in Spring 2004 and that it would be complete by the Spring of 2006, the end of the current plan period.
26. The Council argues that it is unnecessary to meet that part of the housing land supply which reflects the expansion in employment which could be expected to arise from the second crossing. Indeed, the Local Plan indicates that part of the Thistle Hill and Kingsborough greenfield allocations should be held in abeyance, on the advice of the Highways Agency, until the second crossing is complete. Only the sites necessary to satisfy local need, identified as trend growth, need be provided, the Council contends. The Structure Plan indicates a trend based figure of 2,300 dwellings between 1991 and 2006.
27. Various calculations were presented and reworked during the Inquiry. They show a range of results in the broad region of the local need figure, wither shortfall or surplus, which would be improved were windfall sites forthcoming. The calculations include a number of allocated greenfield sites, but not the Thistle Hill and Kingsborough sites being held back for the second crossing."
"28. Overall, housing development in Sheppey is falling behind the Structure Plan target, and there may also be shortfalls in trend growth. However, employment development is also falling behind target to a very great extent and its revival depends critically on the second Swale crossing. PPG 3 advises, in paragraph 33, that local authorities should ensure that new infrastructure is co-ordinated with new housing development. At the time of the 1991 census, 70.9% of those in work on Sheppey were employed off the island and, given the way that employment development has fallen short of the Structure Plan target, this figure is now likely to be greater.
29. House prices are amongst the lowest in the region, despite the Appellant's contention that landowners are tending to hold onto sites in the expectation that prices will rise with the arrival of the second crossing. One would normally expect prices to rise, in conditions of restricted supply such as these. There does not, therefore, appear to be a high market demand for houses in Sheppey and it is questionable whether housing land supply is poor, relative to local need as distinct from [employment] growth.
30. I have looked carefully at the Alderney Estates judgment and note the emphasis placed on providing sufficient housing land in accordance with the provisions of the development plan. However, in my opinion, if the proposed houses were built now, they would be occupied mainly by those commuting off the island for work. This would not be desirable in terms of sustainability. Moreover, if developed now, there would be much less chance of the UCS sites identified being developed in the short or medium term, including those which are not expected to come forward until after 2006.
31. An appropriate strategy for the monitoring and managing of housing supply, in these circumstances, would be to do all that is possible to move the UCS sites forward in the short term. This would include restricting the availability of greenfield sites which, in their nature, are generally much easier to develop. At the same time, to control the order of release of greenfield sites such as this, as advised in paragraph 33 of PPG 3, so that brownfield land continues to be taken up, but overall development keeps pace, sensitively and adequately, with the growth of employment. It may well be that the large brownfield resources of the Queensborough Creek sites would then be available in time to match employment growth.
32. In my view, the proper vehicle for this is the consultative forum of the Local Plan Review. A timetable exists for the Review with adoption anticipated in Autumn 2005, prior to the completion of the second Swale crossing. Although the proposal accords with development plan policy in many respects, I conclude on the first main issue that the release of the site for residential purposes would not accord with advice in PPG 3 concerning the use of brownfield sites in preference to greenfield sites."
"Many of the UCS sites may have failed to come forward in the past, partly because of the availability of greenfield sites. PPG 3, in paragraph 33, emphasises the importance of local authorities managing the release of sites to control the pattern and speed of urban growth and to deliver its recycling target. If easier greenfield sites are available, there will be little incentive to overcome site difficulties and bring the most sustainable urban land into re-use."
"It is easy to find fault and difficulties with previously-developed sites, but PPG3 is all about changing the mind-set of developers away from easy Greenfield development, to tackle the more difficult opportunities involving previously-developed land ... What is lacking is developers' resolve to realise opportunities, and that lack of resolve will remain all the while easy Greenfield sites continue to be released."
The inspector was entitled to accept that evidence, not least because a similar approach underpins the advice in paragraphs 31 to 33 of PPG3. A presumption that previously developed sites should be developed before greenfield sites is needed precisely because, in the absence of such a presumption, developers will be tempted to pick off the easier greenfield sites. The inspector's conclusions in paragraphs 30 and 31, and his conclusion in the final sentence of paragraph 16, were not merely open to him on the evidence, but entirely in accord with the reasoning underlying the new policy advice in PPG3. The conclusion in the first sentence of paragraph 16 is, as Mr Brown points out on behalf of the Secretary of State, a tentative one. The inspector does not conclude that all of the UCS sites failed to come forward in the past because of the availability of greenfield sites. His conclusion is merely that many of them may have failed to come forward in the past partly for that reason. There was, in addition, evidence before the inspector that non-allocated greenfield sites at Thistle Hill and Kingsborough had been developed. Those sites were mentioned during the course of the inquiry and the inspector had visited them during the course of his site inspection. In the light of all that evidence, he was entitled to use his planning judgment to form the somewhat tentative conclusion of which the claimant complains.
"There does not, therefore, appear to be a high market demand for houses in Sheppey and it is questionable whether housing land supply is poor, relative to local need as distinct from trend growth."
Since the inspector had earlier equated local need with trend growth (see paragraph 26), and distinguished the resulting figure from the 2,300 dwellings from the 3,300 dwellings required by the employment-led policies in the structure plan, the last five words of paragraph 29 make no sense. In response to the claim form, the inspector acknowledged in a witness statement that there was indeed an error in the decision letter and the word "trend" should have been "employment". It is clear that the distinction between the employment-led figures in the structure plan and local need was very much in the inspector's mind. Even if that distinction was not apparent in paragraph 29 of the decision letter as written, the conclusion that it was questionable whether housing supply was poor relative to local need was made plain, and it is that conclusion which was significant in the inspector's reasoning, even if the error had remained uncorrected.
"Various calculations were presented and reworked during the Inquiry. They show a range of results in the broad region of the local need figure, either shortfall or surplus, which would be improved were windfall sites forthcoming."
The complaint made by the claimant is that the calculations provided by each party had already made an allowance for windfall sites. Indeed, there was no dispute between the parties as to what that allowance should be. Both parties included an allowance of an anticipated contribution from small sites between 2001 to 2006 of 206 dwellings. I accept that in this particular respect the inspector appears to have made an error. But in my judgment, for the reason given by Mr Brown on behalf of the Secretary of State, the error is of no consequence. The reason is a simple one. The inspector concluded that with or without windfall sites, the range of results in the calculations that had been presented to him was "in the broad region of the local need figure, either shortfall or surplus". This was not one of those cases where the inspector had concluded that the structure plan requirement was not met without taking into account windfall sites, but was met taking into account windfall sites and therefore there was no need for a proposed development. If there was an erroneous double-counting of windfall sites in such a case, that might make a material difference to the outcome of the appeal. In the present case, by contrast, the inspector was in no doubt whatsoever that with or without windfall sites there was little prospect of the structure plan requirement for 3,300 houses being met. Equally, he was satisfied that with or without windfall sites a figure in the broad region of that relating to local need, either shortfall or surplus, was likely to be met. He then set out his reasons for concluding that whilst it was important that the latter figure should be met, it was not so important that the former figure should be met as to warrant a grant of permission for this greenfield site.
"The Council has made no comparison with other allocated greenfield sites. I see no reason to suppose that the appeal site would significantly outperform the others. As applications are made, each would be judged on its merits against available brownfield sites, in accordance with the Council's established procedure."
The claim form complained that the inspector had failed to acknowledge the claimant's evidence that none of the other greenfield sites performed better than the appeal site, and contended that the inspector had in effect set up an Aunt Sally requiring the appeal site to "significantly outperform the others". Mr King, however, accepted in his submissions that comparison of the rival merits of other greenfield sites would only become relevant if the inspector had erred in his approach to the sufficiency of brownfield sites. Since I have concluded, for the reasons set out above, that he did not so err, the question of comparison with greenfield sites does not arise.
"The proposed development appears to me neutral in its ability to build communities. It would be an urban extension, located on the periphery of existing communities, but would probably give support to facilities and services at Halfway and would allow play facilities and the Abbey Rise Local Landscape Area to be extended. It would also provide 24 units of affordable housing, which might not be forthcoming from smaller sites or brownfield sites with problems of viability."
It is said that the inspector erred because he did not acknowledge that the proposal to provide 24 units of affordable housing was directed towards meeting a need for such housing in Halfway.
"There is another significant aspect to housing need, and that is that the proposal (through the unilateral planning obligation) will secure the provision of 24 units of affordable housing, and will thereby satisfy a specific need for affordable housing in Halfway which has been identified by the Swale Housing Association. It is agreed that there is no other site in Halfway in prospect on which this need is likely to be met."
As is plain from the extract from paragraph 20 that I have set out above, the inspector addressed the issue of affordable housing, but as one aspect of just one of the criteria in one paragraph (paragraph 31) of PPG3. Given the relative importance of this particular issue, the inspector was entitled to deal with it in the way that he did. Indeed, it is a tribute to the thoroughness of this very comprehensive and detailed decision letter that this particular matter was referred to at all.