QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KINGSLEY VENTURES LTD||(CLAIMANT)|
|THE SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS||(FIRST DEFENDANT)|
|KERRIER DISTRICT COUNCIL||(SECOND 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 COPPEL (instructed by TREASURY SOLICITOR) appeared on behalf of the FIRST DEFENDANT
The SECOND DEFENDANT was not represented and did not attend
Crown Copyright ©
"45 medium to higher density dwellings to include affordable housing (site carried forward by Camborne-Redruth Local Plan)"
That was the original 1985 plan. However, the proposal in the RDD changed and what was then proposed under heading RL668 was as follows:
"Maximum of 8 low density dwellings and remainder of site to be retained for community recreation purposes (site carried forward from the CRLP)(Urban Framework Plan site)."
"A search sequence, starting with the re-use of previously-developed land and buildings within urban areas identified by the urban housing capacity study, then urban extensions, and finally new development around nodes in good public transport corridors."
In paragraph 31, there are set out in five bullet points the criteria which should be applied. It is not necessary for me to read those into this judgment. The essential point is that previously-developed land should be used so far as possible, and that is defined in Annex C to PPG3 as follows:
"Previously-developed land is that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings), and associated fixed surface infrastructure. The definition covers the curtilage of the development. Previously-developed land may occur in both built-up and rural settings. The definition includes defence buildings and land used for mineral extraction and waste disposal where provision for restoration has not been made through development control procedures.
"The definition excludes land and buildings that are currently in use for agricultural or forestry purposes, and land in built-up areas which has not been developed previously (e.g. parks, recreation grounds, and allotments - even though these areas may contain certain urban features such as paths, pavilions and other buildings). Also excluded is land that was previously developed but where the remains of any structure or activity have blended into the landscape in the process of time (to the extent that it can reasonably be considered as part of the natural surroundings), and where there is a clear reason that could outweigh the re-use of the site - such as its contribution to nature conservation - or it has subsequently been put to an amenity use and cannot be regarded as requiring redevelopment."
"The site would not fall within the definition of previously-developed land as set out in PPG3, notwithstanding that the RDD categorises the site as a mixed brownfield/greenfield site."
That is of some importance because it influenced the inspector in reaching her decision; that the appeal should be dismissed and that planning permission should be refused.
"Just like the land at West Trewirgie, which the Council dropped as an open space allocation because they could not afford to pay residential value for it, the Council would have to buy out the owners of the site by paying them the full value that the site is worth for housing."
He then went to explain why that was so.
"According to the evidence, several different sources of funding may be available to implement the proposals in the UFP, and the Council has already undertaken some investigation as to how the proposal could be implemented. Initial costings for a scheme have not taken into account the cost of acquisition of the site, and the only evidence of acquisition costs before me is that of the appellants' witness, who stated that the site would have to be acquired at residential land value. SWRDA [South-west Region Development Authority] have indicated that they remain interested in purchasing the site to secure the objectives of the UFP, although it is not clear that they would be prepared to pay residential land value for it. However, according to the evidence of the Council's Regeneration Officer for Redruth [Mr Horrocks], a residential land value for the site would not prevent the proposal from proceeding. In my view it would be for those acquiring the site to determine whether that represented an appropriate use of regeneration monies."
She then goes on to note that the Council would have the option of using compulsory purchase powers but no consideration had yet been given as to whether it would be prepared to do so. She continues in paragraph 32:
"But the written and oral representations to the inquiry indicate strong support for the UFP proposal, and the partners to the UFP process appear to be committed to the scheme. I consider therefore, on the information at present before me, that there is every likelihood of the scheme proceeding and the bulk of the site being retained as open space. The fact that the site is, at present, in private ownership does not, therefore, lead me to alter my conclusions."
"Housing provision should be mainly within or well integrated with the existing built-up areas of towns giving particular emphasis to the importance of larger urban areas as employment and service centres. In rural areas provision should be mostly in the main villages and closely related to the needs arising from the existing population.
"The location, scale and phasing of housing development should:
1) minimise the need for travel and encourage access by public transport, on foot and by cycle, having regard to the likely overall impact on travel patterns and the degree to which development needs could be met in alternative locations;
2) minimise any adverse impact on the landscape, the best and most versatile agricultural land, nature conservation, or historic environment;
3) retain open spaces and avoid town cramming;
4) achieve a satisfactory balance between where people live and the adequacy of local jobs, shops and other services and provision for primary health care, education and social services; and
5) facilitate the layout, density and design of housing in ways which will provide attractive conditions for cycling and walking; maximise potential for energy conservation; provide for the needs of less able people and provide adequate open space and play areas."
"Development should not lead to the loss of open spaces but contribute to the recreational amenity or environmental quality of the area, unless such spaces can be conveniently replaced in the locality."
The notes in relation to that say among other things that:
"Many ... open spaces, including sports pitches and playing fields, in and around our towns and villages that contribute greatly to the quality of life for local people. This may be either through their recreational value or environmental quality. It is an important objective to both retain these and improve provision in built-up areas. The importance of their retention will always have to be balanced carefully against the need for development and the availability of alternative sites."
"[It] requires housing to be mainly within or well integrated with existing built-up areas. The criteria to be met by housing development include minimising the need for travel and encouraging access by means other than the private car, retaining open spaces and avoiding town cramming."
That, of course, is merely to refer to the salient criteria which I have already read.
"Because the site is well located in relation to Redruth town centre, the development would accord with policy SP2 of the SP. However, as the proposal would result in loss of a large part of this existing open space, there would be some conflict with policy H2, one of whose criteria requires development to retain open spaces. There is nothing in that policy to suggest that the reference to open spaces is confined to a publicly owned open space or to the definition of open space in the Town and Country Planning Act 1990."
"I conclude, on the main issue, that although the proposal, in terms of its location and accessibility, would meet the requirements of policies SP2 and H4 of the SP and policy H2 of the RDD, there would be conflict with policy H2 of the SP because of the loss of open space."
That, in my judgment, is wrong, and is a clear error of law because it involves a misconstruction of the policy.
"Amenity greenspace (most commonly, but not exclusively in housing areas) - including informal recreation spaces, greenspaces in and around housing, domestic gardens and village greens",
and make it clear, in my view, that it is not, as I say, limited to public open space. The question is whether as a matter of fact the land in question is used for recreational purposes by the public or is an amenity in other respects. As I say, the fact that the public do not have access as of right is, of course, a material consideration but is not a matter which takes the site out of the definition of open space within the meaning of PPG17.
"The consultation period in respect of the RDD was due to end shortly after the inquiry closed, and the document is therefore at a relatively early stage. Furthermore, objections to proposal RL668 have been lodged on behalf of the appellants. However, despite this and although the policy remains to be tested through the Local Plan process, I accord a significant amount of weight to the aims of proposal RL668 to keep much of the site free from development. This is because it accords with the thrust of advise in both PPG3 and PPG17, and because of the degree of public and community participation leading up to the adoption of the UFP where it originated. I consider that the conflict with the advise in PPG3 and PPG17 and with RDD policy represents a significant objection to this proposal, clearly outweighing the advantages of site's sustainable location and the proposal's inclusion of affordable housing."
"The Government is committed to a plan-led system of development control. This is given statutory force by section 54A of the 1990 Act. Where an adopted or approved development plan contains relevant policies, section 54A requires that an application for planning permission or an appeal shall be determined in accordance with the plan, unless material considerations indicate otherwise."
Paragraph 48 of PPG1 deals with the question of whether regard should be had to development policies in emerging plans which are going through the statutory procedures:
"The weight to be attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached."
Then there are various examples, the first 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."
That, submits Mr Edwards, applies clearly in this case: the consultation period was not at an end; there were objections to the plan; there were reasons to suppose that on financial grounds the proposal might not be able to go ahead. A combination of all those factors might well mean that RL668 could not in the end obtain approval. In any event, as the lapse of time has made plain, there has still been no inquiry in relation to the emerging plan. There would be a wholly unacceptable delay in the use of this land.