QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PEMBROKESHIRE COAST NATIONAL PARK AUTHORITY||(CLAIMANT)|
|NATIONAL ASSEMBLY FOR WALES||(DEFENDANT)|
|LYN DELABATOUCHE||(INTERESTED PARTY)|
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 MARSHALL (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
The Interested Party did not appear and was not represented
Crown Copyright ©
"Planning consent will be given for the change of use of land or buildings, (including their adaptation), provided the following criteria are met in full:
(1) the land or building is physically capable of accommodating the new use and any associated requirements;
(2) the proposal does not result in the retention of a prominent structure which is inappropriate or unsightly;
(3) the proposal does not involve the introduction or intensification of either
• a use inappropriate to the existing building or its locality or
• a use incompatible with the [National Park's] Special Designation;
(4) in countryside locations, ie outside the main settlements of the Plan area as defined in policy GE2, the conversion of buildings which require complete or substantial rebuilding will not be permitted;
(5) due regard is paid to the welfare of any wildlife, particularly bats and barn owls or other species afforded statutory protection, which live in the structure."
"Where, in making any determination under the Planning Acts, regard is to be had to the Development Plan, the determination shall be made in accordance with the Plan unless material considerations indicate otherwise."
At the appeal, the National Park Authority argued that the development conflicted with the emerging Joint Unitary Development Plan (JUDP) promulgated by the National Park Authority and Pembrokeshire County Council. The argument is encapsulated in the following sentence taken from paragraph D17 of the authority's written submissions on appeal: it was argued "it would not be appropriate or responsible to pre-judge the outcome of the JUDP process by granting unfettered permissions which once approved could never be retrieved for local/essential needs."
"In this regard, a joint report was circulated at the meeting, which was the result of prolonged discussions between the Development Plans Officer, the Solicitor, the Authority's Barrister and the Development Control Officer, and which continued to endorse the general approach set out in the report of 12 December 2001, namely:-
(A) that the draft policy relating to new housing and local needs should be applied to all applications for new housing development in the National Park, and
(B) that applications for new housing development might be refused on grounds of prematurity, depending on the circumstances of each case, and taking into account all material considerations.
However, the question then arose as to the date from which the draft local needs housing policy became effective for development control purposes. This was a difficult and, inevitably, contentious decision, which required a balance that took into account:-
(A) the need for proper planning of the area in the public interest, and
(B) the need not to prejudice the outcome of the UDP process as regards housing policy, and also
(C) the need act fairly towards applicants for planning permission.
On balance, therefore, officers recommended that, in the interest of fairness, the draft policy should apply to all applications received by the Authority after the date of the meeting that day (23rd January 2002), ie the date on which the Authority agreed that the proposals were accepted as the policy of the Authority for inclusion in the Draft Deposit Plan. For the avoidance of doubt, an application would henceforth only be exempt from being considered in the light of the draft policy if a complete, valid, and in all respects registrable application had been received by the Authority by the close of business (being 5.00pm) on the 23rd January 2002."
The members resolved to accept that recommendation.
"It was explained that section 54A of the 1990 Planning Act requires Authorities to determine planning applications in accordance with the provisions of the Development Plan unless 'material considerations indicate otherwise'. The Development Plan means the Dyfed County Structure Plan, and this Authority's Local Plan. However, the emerging policies of the Joint Unitary Development Plan which will be placed on Deposit in May are themselves 'material considerations'. The Authority's draft new Housing Policy is such an emerging policy, and so must be taken into account as a material consideration.
The weight to be attached to the emerging policy depends upon the stage of plan preparation reached and the number and type of objections made to the policy. For this reason it would not be appropriate to refuse at this stage in the plan process a planning application for breach of that emerging policy. However, national guidance advises us that where a plan is in the course of preparation and proposals have been issued for consultation but the plan has not yet been adopted it may be justifiable to refuse planning permissions on the grounds of Prematurity. Prematurity as a ground of refusal may arise in respect of those proposals which are individually so substantial, or whose cumulative effect would be so significant that to grant permission would prejudice the outcome of the Development Plan process so as to determine decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. The guidance states that such a refusal would not usually be justified except in cases where a development proposal goes to the heart of the Plan. Draft Policy 47 seeks to give effect to the underlying strategy of the JUDP on the location of housing. The strategy agreed by the two authorities is that the only new housing located within the national park should be housing meeting local needs, whereas unrestricted housing should be located in the County outside of the national park. For this reason, the issue of the location of housing development is at the heart of the plan, and planning permissions for unrestricted housing within the national park may -- depending on their particular facts -- predetermine these issues."
"It is the policy of the Pembrokeshire Coast National Park Authority that new residential development will not be permitted in the National Park unless the applicant demonstrates that the development will meet:
I) a need for residential accommodation for local person/s and/or
Ii) an essential need to live within the Sustainable Community.
In addition the applicant must demonstrate there is no suitable alternative accommodation available within the Sustainable Community. A planning obligation will be secured by agreement, and/or a planning condition imposed, to ensure the occupancy of the dwelling is confined to local persons or those with essential need in perpetuity."
I should explain that Tenby, the town in which the proposed development would have taken place, was Sustainable Community No 4 South East Coast within the meaning of the emerging policy. Mrs Delabatouche was not prepared to be bound by such a condition.
"In order to assist Members to make the careful judgment that such cases demand it is proposed that we adopt the following approach. Each planning application for which the new Housing Policy would be a material planning consideration, will be the subject of a prematurity assessment as to the impact on the emerging plan of giving an unrestricted planning permission for that application. This will contain Officers' conclusions as to whether or not the proposal goes to 'the heart of the Plan'.
Issues that may be relevant in individual assessments include:
(i) the size of the site and number of units proposed;
(ii) the proportion of housing provision in the park and in the relevant sustainable community which that site represents;
(iii) the environmental sensitivity of the site;
(iv) the importance of the emerging policy in the context of planning for housing in the JUDP area and planning for the National Park in particular;
(v) the importance of the emerging policy in the context of the plan as a whole;
(vi) the impact of granting permission, and not granting permission, on the particular settlement and the National Park;
(vii) overall, whether granting permission would prejudice the outcome of the plan process so as to predetermine decisions about housing development which ought to be taken in the development plan process.
The assessment as to whether the proposal goes to the heart of the Plan will be made in a separate Appendix annexed to the Development Control Report.
Officers will summarise the conclusions reached in the Appendix, and include these in the usual Development Control reports on individual applications.
In this context, it is considered that a Section 106 obligation which restricts the occupancy of new dwellings to those who would satisfy the terms of Draft Policy 47 will meet the prematurity objection (provided that a suitable occupant exists). Granting restricted permissions protects the position, because if the emerging policy is adopted, the plan process will not have been harmed in the meantime."
Under the title "Fairness" the authors recognised that a new policy would give rise to issues of fairness concerning the individual applicant. The development control report would, members were assured, deal with fairness in making recommendations in individual applications. At the end of the first paragraph under that title appears the following:
"A judgment will then have to be reached balancing on the one hand, fairness to the applicant, and on the other hand, the harm to the emerging development plan and the strength of any prematurity objections in the given case."
"Members will be considering a report at the Extraordinary Authority meeting on the morning of April 17th as to the suggested way that prematurity and issues of fairness should be addressed when dealing with applications which fall to be considered under the terms of the emerging JUDP policy 'Housing in the Pembrokeshire Coast National Park'. To avoid unnecessary delay this report has been prepared under the the assumption that the recommended approach will be agreed.
Dealing with the issues of prematurity and fairness first the appraisal regarding the position in respect of Sustainable Community No 4 is attached in full as Appendix 3 and my view is that approving this change of use to create two new residential units without the ongoing restriction in respect of occupation would go to the heart of the strategy and the plan and prejudice the outcome of the Development Plan process.
In respect of fairness in this instance no relevant points have arisen other than the applicants agents supporting statement that the two additional modest two bedroomed units resulting from this proposal would be likely to be purchased by local residents or those with an essential need to live in the locality and would therefore fall into the category of local or essential needs housing.
In my view no matters have been raised sufficient to depart from the conclusion in the prematurity assessment that the grant of planning permission in this case would prejudice the outcome of the Development Plan process. As advised previously questionnaires were sent to the applicants agent but no response has yet been received.
Given the prematurity assessment permission could not be granted without prejudicing the outcome of the Development Plan process."
The recommendation was made that permission be refused on the grounds that a grant would prejudice the outcome of the development plan and that the proposed development would set a precedent to reduce the few opportunities left for local needs and essential needs housing development in the Sustainable Community.
"3.5.1 Planning applications must be considered in the light of policies in the adopted UDP. The weight to be attached to policies in emerging UDPs which are going through the statutory procedures towards adoption depends upon the stage of plan preparation (the weight will increase as successive stages are reached) and upon the degree of any conflict with adopted plans. If no objections to relevant policies in a deposited plan have been lodged, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted and replace those in the existing plan. Equally, the converse applies if there have been objections to relevant policies. The nature of objections to, and representations in support of, a policy will also be an important consideration.
3.5.2 Questions of prematurity may arise where a UDP is in preparation or under review, and proposals have been issued for consultation (ie placed on deposit) but the plan has not yet been adopted. In these circumstances, it may be justifiable to refuse planning permission on grounds of prematurity in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would predetermine decisions about the scale, location or phasing of new development which ought properly to be taken in the UDP context. Refusal would therefore not usually be justified except in cases where a development proposal went to the heart of a plan. This requires careful judgment. A refusal might be justifiable where a proposal would have a significant impact on an important settlement, or on a substantial area, with an identifiable character, but would rarely be justifiable if a development proposal impacted on only a small area.
3.5.3 The stage which a plan has reached will also be an important factor in judging whether a refusal on prematurity grounds is justifiable. A refusal on prematurity grounds will seldom be justified where a plan is at the pre-deposit consultation stage, with no early prospect of reaching deposit, because of the lengthy delay which this would impose in determining the future use of the land in question.
3.5.4 Where there is a phasing policy in the plan there may be circumstances in which it is necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.
3.5.5 Where planning permission is refused on grounds of prematurity, the local planning authority will need to indicate clearly how the grant of permission for the development concerned would prejudice the outcome of the UDP process."
"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed those considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
"By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given."
".... in the present case the Inspector clearly had relied on precedent. He accepted Mr Hobson's proposition that where precedent was relied on, mere fear or generalised concern was not enough. There had to be evidence in one form or another for the reliance on precedent. In some cases the facts might speak for themselves. For instance, in the common case of the rear extension one of a row or terrace of dwellings, it might be obvious that other owners in the row were likely to want extensions if one was permitted. Another clear example was sporadic development in the countryside."
"The Assembly Government's vision for housing is for everyone in Wales to have the opportunity to live in good quality, affordable housing, to be able to choose where they live and decide whether buying or renting is best for them and their families .... "
At chapter 9, paragraph 2.14:
"A community's need for affordable housing is a material planning consideration which may properly be taken into account in formulating UDP policies. It is also an essential element in contributing to community regeneration and strengthening social inclusion. It may be desirable in planning terms that new housing development in both rural and urban areas should incorporate a reasonable mix and balance of house types and size to cater for a range of housing needs .... "
And at paragraph 2.15:
"Where local planning authorities have demonstrated the need for affordable housing, by undertaking a recent local housing needs assessment survey as recommended in the Assembly Government's guidance or by the use of other reliable and robust data sources, such as the housing registers of local authorities and registered social landlords, they should include policies for affordable housing in their UDP for the areas where need has been identified. Targets for specific sites may be set if based on evidence of need and site suitability, but a uniform quota should not be imposed on development regardless of market or site conditions .... "
"The 'Second and Holiday Homes and the Land Use Planning System Research Project' examines particularly the relationship between housing and planning issues. It reiterates that second and holiday homes are not a 'stand-alone' problem, being bound up with problems of affordability, and identifies a contraction of the second and holiday home market into a number of core areas. The research was commissioned by the Welsh Assembly Government as part of a wider programme of study to assist the development of thriving sustainable communities in a strong rural economy.
Responding to the recommendations published in the report, [the minister] said:
'I am pleased that the findings support the direction already being taken by the Welsh Assembly Government in its planning policies. Many of the report's recommendations are already being implemented or actively considered. For example, our new Planning Policy Wales supports the Welsh language by ensuring Wales-wide consideration of the language by all local planning authorities.
It also confirms the government view that "locals-only" controls are generally legally questionable and difficult to enforce, and that requiring planning permission for changing from a first to a second home results in similar fundamental problems.
The report is clear that the best way forward is to ensure planning and housing processes are working together to provide a sufficient supply of affordable housing and choice to meet local needs. Other suggestions, like creating specific sites in development plans for affordable homes and also second home developments, are helpful and could be implemented without any further alterations to guidance.
Our next step is to work closely with local authorities in the 'hotspots' on the implications of this work, and the best way to use our current guidance in addressing their problems.'"
The key findings of the research included:-
"At a national level, the researchers' estimates of the number of second and holiday homes across Wales show that their proportion of the total housing stock is between 1.31% and 1.52% (2001) depending on the methodology used and there has been between a 10-12% reduction in second and holiday homes over the last 10 years (1991-2001).
The main concentrations of second homes are generally clustered in coastal locations from the Vale of Glamorgan to Ynis Mon. In relative terms, they are most significant around Cardigan Bay, notably in Pembrokeshire, Snowdonia, the Lleyn Peninsula and Ynis Mon. New growth areas for second homes are emerging in the Vale of Glamorgan and the eastern part of Carmarthenshire.
• There is no national link between second home concentration and house prices but in localised, desirable settings, retirement, commuting patterns and second homes all impact on the pattern of housing policies pushing some locations out of the price range of buyers with relatively less spending power .... "
"Subject to the advice about affordable housing .... if the development of a site for housing is an acceptable use of the land there will seldom be any good reason on land-use planning grounds to restrict the occupancy of those houses to a particular type of person (eg those already listing or working in the area). To impose such a condition is to draw an artificial and unwarranted distinction between new houses or new conversions and existing houses that are not subject to such restrictions on occupancy or sale. It may deter housebuilders from providing homes for which there is a local demand and building societies from providing mortgage finance. It may also impose hardship on owners who subsequently need to sell. It involves too detailed and onerous an application of development control and too great an interference in the rights of individual ownership. In the view of the Secretaries of State, such conditions should therefore not be imposed save in the most exceptional cases where there are clear and specific circumstances that warrant allowing an individual house (or extension) on a site where development would not normally be permitted."
"There are no convincing reasons to show that the limited re-development now proposed could successfully be exploited by others as a serious precedent."
"Annexe 2 .... establishes the circumstances in which costs may be awarded. Paragraph 7 of Annex 3 warns that a local planning authority should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as is material to the application, and of any other material considerations. Paragraph 8 says that refusal reasons should be complete, specific and relevant to the application. In any appeal proceedings, the authority will be expected to produce evidence to substantiate each reason for refusal, by reference to the statutory development plan or by taking into account all of the other material considerations."
The inspector found that the authority acted unreasonably in taking the prematurity point in this case. They should have realised that it "flew in the face" of national planning guidance, which clearly states that policies specifically to meet local needs are acceptable only if they relate to affordable housing. There were no valid or justified material considerations to indicate that development plan GE7 should not be applied. They failed to demonstrate that the proposal would cause demonstrabl harm to interests of acknowledged importance. The authority acted unreasonably making the averment that the proposal would place pressure on greenfield sites elsewhere in the national park. This was merely restoration on a private dwelling previously used as a guest house.
"Given its coastal location, lack of off-street parking and minimal external amenity space, it is much more likely to attract the retired elderly without dependent children who value easy access on foot to local facilities and services."