QUEEN'S BENCH DIVISION
B e f o r e :
|J S BLOOR (SUDBURY) LIMITED|
|THE FIRST SECRETARY OF STATE|
|BABERGH DISTRICT COUNCIL|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
Hammonds, Birmingham) appeared on behalf of THE CLAIMANT
MISS SARAH-JANE DAVIES and MR ROBERT PALMER (instructed by
the Treasury Solicitor) appeared on behalf of THE FIRST DEFENDANT
Crown Copyright ©
MR JUSTICE GIBBS:
The application leading to the claim
The earlier appeal
"In my view the 5 house types now proposed could not be termed 'chalet bungalows' and I also note that 5 double garages are proposed. Nevertheless, the Council accepts that by reason of the planning history, the principle of 5 dwellings on the site is established and not at issue. In the light of these circumstances, it seems to me that there would be no disadvantage to the appellant, or to any other interested party, in determining the appeal as if the application had sought full planning permission in the terms set out in the Council's decision notice as described in the above heading. Hence this is what I will do. For the sake of clarity I determine the appeal on the basis of the revised layout plan .... and associated revised plot house types as amended on 15 November 2000."
3.The main issue is whether the proposed development would cause unacceptable harm to the character and appearance of the area by reason of the scale and form of the dwellings proposed."
The inspector went on to deal with the planning policy background:
4. The development plan for the area now comprises the Suffolk Structure Plan 2001 adopted in June 2001 and the Babergh Local Plan (Alteration No 1) adopted in June 1995, although the previous version of the structure plan was operative at the time the application was determined by the Council....
5.Under policy LP5 the local plan classifies Shimpling Street as one of a number of villages wherein by reference to policy LP4 new housing development in the form of infilling or groups of up to 5 dwellings within the built-up area may be appropriate subject to the satisfaction of detailed criteria. The latter include consideration of the proposal's impact on the scale and character of the village, residential amenity, landscape (especially Areas of Outstanding Natural Beauty and Special Landscape Areas), and the environment, particularly conservation areas and listed buildings.
6.Policy LP17 sets out 4 circumstances in which infilling or groups of dwelling will be refused planning permission. Of these the Council's reason for refusal indicates that criteria (b) and (d) would not be satisfied by the current proposal. The former applies to proposals which in the opinion of the District Council would represent overdevelopment to the detriment of the environment, the character of the area, residential amenity or highway safety. The latter applies where the proposal would be of a scale, density or form which would be out of character with adjacent and nearby dwellings or other buildings....
7..... I note that the emerging review of the local plan has policies with broadly similar aims to those of the adopted plan but since this is currently at an early stage it does not carry the same weight as the adopted plan policies."
Mr Goodman then went on to deal with his reasoning:
"9.Bearing in mind the outline planning permission and the illustrative layout which accompanied it, the concept of development of the site with five detached dwellings appears to me to be broadly acceptable, notwithstanding that it is a low density concept in comparison with current national guidance in Planning Policy Guidance 3 'Housing'. In my view the low density reflects the character of much of the nearby development. It is also in part a function of the need to retain the on-site pond, with its associated wildlife interest, and to allow an easement for the sewer which crosses the southern part of the site."
The effect of the inspector's reasoning was that criteria (b) and in part (d) in Policy LP17 were found to be fulfilled. Paragraph 9, to which I shall return later, contains a significant part of Mr Goodman's reasoning. At paragraph 10 the inspector continued:
".... While the design of the chalet bungalows may not have been particularly reflective of the area or its rural vernacular, their massing would generally have reflected the single and one and a half storey bulk of most of the houses at this slightly elevated end of the village."
(This was a reference to the earlier outline planning application which had been submitted.)
"11.By contrast the proposed executive style houses, well designed as they are, would generally have eaves between 3.5 and 4m high and ridge heights of between 8 and 9m. As a result they would be noticeably larger in scale than all of the surrounding houses and most of the other houses along the road through the village.
12.Moreover, the site is open to the countryside to the south west and buildings of this scale would be clearly seen in views across the valley from the west as a substantial intensification of development at a prominent entry/exit point to the settlement. Viewed as a group they would appear as an overlarge and dominant feature at the edge of the special landscape area, in my opinion. While structural landscaping/tree planting might soften this to some extent, and should be possible on the southern boundary, it is not clear that there would be sufficient space along the western boundary to the side of The Rosary.
13.Accordingly, I conclude that the development would not accord with the aims of adopted development plan policies aiming to ensure that development respects the scale and nature of its surroundings and conserves and enhances the scale of the special landscape area."
It follows from that reason that the other part of criterion (d) was not in the inspector's view fulfilled. The inspector continued that he had had regard to whether the proposal could be said to be overdevelopment in the normally accepted sense of the word. He concluded that the proposed houses would not cause an unacceptable impact on the privacy, outlook or other amenities of the nearest adjourning dwellings. As already mentioned, these findings were made in December 2001, not long before the refusal of the current application.
The Decision now under appeal
"2.These are firstly the impact of the proposed development on the character and appearance of the area. Secondly, whether the proposed density of development would be appropriate in the light of existing and emerging development plan policies, national guidance and other material considerations."
Mr Brown then reviewed the planning background in a manner broadly similar to that of Mr Goodman. Towards the end of his review he said:
"6.Within the Babergh Local Plan Alteration No 2 First Deposit Draft (September 2001), a number of Policies have been carried over from the extant Local Plan with little, if any, alteration. Existing Policies LP4, LP17 and LP58 become Policies HS02, HS12 and EN04 respectively. Proposed Policy HS03 is similar to extant Policy LP5, the only change being additions to the list of villages but which still include Shimpling Street. Policy HS11 replaces extant Policy LP16 with regard to housing density, requiring that residential densities should be in the range of 30 to 50 dwellings per hectare. Proposed Policy CR05 expands upon guidance relating to Special Landscape Areas. Supplementary Planning Guidance attached to Alteration No 2 includes a revision to the boundary of the built up area of Shimpling Street (and which now omits the appeal site), together with a Housing Needs Survey."
The inspector considered the weight to be attached to the emerging Local Plan. He said:
"8..... It is at a relatively early stage within the adoption process. Therefore, in accordance with guidance within PPG1, on the whole I will afford it little weight."
However, he made an important proviso:
"9.However, emerging Policy HS11 accords with guidance within PPG3, which was published in March 2000 and post dates the extant Local Plan. PPG3 clearly establishes the Government's objectives with regard to making the best use of land. Whilst paragraph 56 acknowledges that new housing development of whatever scale should not be viewed in isolation, paragraph 58 states that local planning authorities should avoid developments which make inefficient use of land (those of less than 30 dwellings per hectare net). They should encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare)."
He went on to deal with the effect of PPG3:
"11.Paragraph 38 of PPG3 provides unequivocal advice in this respect. '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'. This guidance is echoed in paragraph 54 of PPG1 which concludes by stating that 'Particular policies of the plan may, for example, have been superseded by more recent planning policy guidance issued by the Government'.
12.Because emerging Police HS11 reflects current Government advice, it effectively supersedes extant Local Plan Policy LP16, and is therefore of direct relevance to this appeal."
The inspector went on to deal with what he had identified as the first issue:
"17.Shimpling Street is a village of essentially linear proportions with the majority of the properties being situated either side of The Street. A major exception is at the western end, where development (fronting Barnfield) extends further to the south. As described earlier, building curtilages virtually surround the appeal site. Consequently, the proposed development would fit easily within the general ambience of the area. Therefore, and notwithstanding the Special Landscape Area designation, in principle I do not consider that the development of the appal site would be harmful to the character and appearance of the area. As such, and subject to the satisfactory resolution of further details but again only in principle, the scheme before me would accord with the main thrust and/or relevant criteria of Structure Plan Policy ENV8, and extant Local Plan Policies LP2, LP4, LP5, LP17, LP58 and LP97."
The inspector went on to consider the second issue, that of density:
"18.The appeal proposal would result in a development density of 9.1 dwellings per hectare. At the inquiry, I sought guidance pertaining to the possible constraints to development arising from both the public sewer easement and the existing pond. After careful consideration, I lean towards the Council's conclusions that the easement could pass through garden areas, and that the pond could form part of the overall open space/amenity area. Therefore, such features would not be unacceptably onerous or significantly influence a housing layout.
19.The requirements of PPG3 with regard to density are recorded above in paragraph 9, and do not need not be repeated. In the light of this clear policy statement, I am of the opinion that the proposed density of development would not be appropriate and would not accord with either existing or emerging development plan policies, or national guidance. As such, it would be at odds with the main thrust and/or relevant criteria of Structure Plan Policy CS3 emerging Local Plan Policy HS11, and advice within PPGs 1 and 3."
(The reference to "Structure Plan Policy CS3" in that context is the subject of a challenge in this claim, to which I shall refer later.)
"20.PPG3 also provides guidance with regard to rural housing -- village expansion and infill. The appeal proposal would enlarge the population of the parish by some 5 or 6%. The appellant did not contest the Council's assertion that this would be a significant increase. Paragraph 70 of PPG3 advises that villages will only be suitable locations for accommodating significant additional housing where (first bullet point) it can be demonstrated that additional housing will support local services, such as schools or shops, which could become unviable without some modest growth.
21.This advice is echoed in Structure Plan Policy CS3....
22.Shimpling Street has only a public house and a village hall. There is no primary school or shop. Whilst reference was made to possible spare capacity at a school in a nearby village, I have no information before me to support such an assertion...."
(The words at paragraph 20 'the appellant did not contest the Council's assertion that this would be a significant increase" are also the subject of challenge, to which I shall refer later.) The inspector went on to deal with the lack of transport facilities and employment opportunities within the area. He continued:
"23.I therefore conclude that not only is the density of the appeal proposal at odds with Government advice and Structure Plan and emerging Local Plan Policies, but the principle of development in a relatively unstable location must be open to question. This is a matter which should be determined through the Local Plan process."
The inspector went on to identify and discuss other material considerations:
"24.The appeal decision letter of October 2001 is clearly material to this decision, and the appellant contends that my colleague accepted the principle of 5 dwellings within the appeal site. Because this would have been similar to the present proposal, his acquiescence to development of such a low density is a material consideration which supports the scheme now before me.
25.However, the main issue identified was 'whether the proposed development would cause unacceptable harm to the character and appearance of the area by reason of the scale and form of the dwellings proposed.' The appeal proposal was clearly judged against these parameters. Consequently, I do not accept that my colleague's determination of this earlier appeal is a material consideration of such weight as to justify setting aside clear and ambiguous guidance regarding housing density. Indeed, the present appeal is 'free standing' and must be determined on its merits."
The inspector went on to say that he was mindful of the statement made in 2001 by the then Planning Minister, Nick Raynsford. I need not deal with that statement because in my judgment it adds nothing to PPG3, to which it referred. The inspector went on to consider a housing needs survey and, whilst not attaching great weight to the matters emerging from that survey, he concluded that the proposed development would not assist in resolving the present housing shortfall of West Babergh. Finally, under "Other Material Considerations" he referred to previous applications submitted by the appellant in respect of the same site, two of which sought planning permission for 14 dwellings. He concluded:
"For the reasons detailed above, in principle I do not consider that the proposed development would be harmful to the character and appearance of the area. Nevertheless, the density of such a scheme would not accord with the relevant policies or national guidance, and in my view the overriding principle of the development of the appeal site needs to be reassessed. I have given careful consideration to all other matters raised, but nothing persuades me from my conclusions with regard to the main issues."
"Under section F the reason for the appeal should be due to the refusal of a full planning application and not the refusal of details required by a previous outline planning application as stated by the applicant. The application was first submitted as reserved matters. However, this was changed with the applicant's agreement before determination as the application was substantially different to the previous outline permission."
The Planning Policy Background
"Other towns and villages with potential for housing development [these include the village in question] primarily meeting the needs of their surrounding area will be identified in local plans. At these settlements, new housing may be located within or, where indicated in the local plan, adjoining the built-up area. Settlements identified for new housing under this policy should have all of the following."
(Thereafter a number of local facilities are mentioned.)
"LP4 New housing development in Villages will normally take the form of infilling within the built-up area, although it is expected that small groups of up to 5 dwellings may also be appropriate within the built-up area providing that there is no significant adverse impact on:
(i)the scale and character of the Village;
(iii)landscape, particularly Areas of Outstanding Natural Beauty and Special Landscape Areas;
(iv)the availability of services and facilities;
(vi)the environment, particularly conservation areas and listed buildings;
(vii)an open space which is important to the village scene or an important recreational asset for the locality."
By Policy LP5 Shimpling Street was included in LP4. LP16 reads:
"Housing densities need to vary according to location and site characteristics. In certain circumstances, particularly on small sites and in order to achieve an environmentally-acceptable scheme compatible with the location of the site, densities lower than the advisory standards in Structure Plan Policy H1 will be required."
There was a note that H1 had been deleted from the Structure Plan. LP17 reads:
"Planning applications for infilling or groups of dwellings will be refused where:-
a)the site should remain undeveloped as an important feature in visual or environmental terms;
b)the proposal, in the opinion of the District Council, represents overdevelopment to the detriment of the environment, the character of the locality, residential amenity or highway safety;
c)the layout provides an unreasonable standard of privacy, garden size or public space;
d)the proposal is of a scale, density or form which would be out of keeping with adjacent and nearby dwelling or other buildings."
"Planning permission for residential development will not be granted where the density is below 30 dwellings per hectare net. Residential densities should be in the range of 30 to 50 dwellings per hectare. To maximise residential densities at the upper end of this range, the District Council will accept lower car parking and open space standards on sites in towns where they are close to jobs and services, and where:
*the site is either well related to or offers the opportunity to invest in alternative modes of sustainable transport, including public transport and cycle provision; and
*compensatory off-site open space can either be provided, upgraded or enlarged where nearby open space already exists.
The District Council will seek a Planning Obligation for the compensatory off-site requirements."
Paragraph 3.64 of the same Deposit Draft reads:
"The District Council endorses the aim of increasing housing densities. However, the environmental quality and character of the Babergh District is exceptional. This applies equally to both Towns and Villages and to the Countryside. Some housing sites, due to their sensitive location or to the proximity of very low density housing, will require to be developed at low densities and Policy HS14 will be relevant in this respect."
I need not quote from Policy HS14 because its relevance, if any, does not extend to the present claim.
"Local planning authorities should therefore:
*avoid developments which make inefficient use of land (those of less than 30 dwellings per hectare net -- see definitions at Annex C);
*encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare net);...."
"47. Questions of prematurity may arise where a development plan is in preparation or under review, and proposals have been issued for consultation, but the plan has not yet been adopted or approved. In some circumstances it may be justifiable to refuse planning permission on the grounds of prematurity. This may be appropriate in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. A proposal for development which has an impact on only a small area would rarely come into this category, but a refusal might be justifiable where a proposal would have a significant impact on an important settlement or a substantial area with an identifiable character. Where there is a phasing policy in the development plan, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.
48. Other than in the circumstances described above, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging development plans which are going through the statutory procedure towards adoption (or approval). The weight to be attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached."
Examples are then given, one of which is:
"where a plan is at the consultation stage, with no early prospect of reaching deposit, then refusal on prematurity grounds would seldom be justified because of the lengthy delay which this would impose in determining the future use of the land in question."
This is broadly the equivalent of the stage reached in the preset case.
The Relevant Law
"If an inspector fails to have regard to what in the circumstances of the case is a material consideration which has been 'placed before him' (and for the moment I adopt Mr Straker's phrase), then his determination is exposed to challenge on the ground that it is not within the powers of the Act. Where an inspector's reasons do not indicate whether he has had regard to a material consideration which was placed before him then there must usually be (in Lord Bridge's words) 'substantial doubts whether the decision taken was within the powers of the Act'. Accordingly the interests of an applicant will in that circumstance have been substantially prejudiced by the deficiency of reasons, for he is left in doubt as to empowerment and his ability to challenge on that ground.
In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departing from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
"I am entirely satisfied that though the Inspector apparently had regard to these earlier decision letters, and that they were taken into account as the material considerations they plainly were, the Inspector equally plainly had a duty to state his reasons for taking such a radically different approach. The commonality of the issues raised by the two previous decision letters which I have particularly emphasised and the instant decision letter, I have described above and is obvious. Each related to very similar forms of development, that is to say extensions into and use of roof voids for living accommodation with no increase in ground cover or footprint. Each raised the same issues as to the application of policy in the Green Belt, that is to say PPG2, Structure Plan Policy S9 and policies GB2 and GB7 of the Local Plan. Each, therefore, was raising the same issue, ie the extension of residential accommodation into roof voids, exceeding the specific threshold in policy GB7, appropriate development in the Green Belt. This was, to borrow the phrase of Mann LJ in North Wiltshire, '.... the or one of the critical aspects in each decision letter'."
The application to quash in that case was allowed. The passage cited was relied upon by counsel as analogous to the factual situation and the planning background of the present case.
The Submission on behalf of each party
"Nevertheless, the density of such a scheme would not accord with the relevant policies or national guidance and in my view the overriding principle of the development of the appeal sites needs to be re-assessed."
The earlier paragraph (paragraph 23) in which he deals with this matter makes it clear that his view is that he thinks that this assessment should be via the local plan process. Thus the conclusion paragraph must be interpreted as including, in my judgment, a finding by Mr Brown that it was premature for him to decide the fundamental principle of whether the appeal site should be developed at all. In my judgment, the nature and scale of the appeal site was such that a finding on prematurity was simply not justified or supportable by the principles in relation to prematurity set out in PPG1, some of which I have already cited.