England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13 March 2007

1. THE DEPUTY HIGH COURT JUDGE: This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of an Inspector, given on 17 May 2006, after an informal hearing on 25 April 2006. The appeal related to land at Bristol Road, Allington, Chippenham in Wiltshire. It was an appeal by Chippenham Motors Limited, made under section 78 of the Town and Country Planning Act 1990, against the refusal by the North Wiltshire District Council of an application for outline planning permission for residential development. It was common ground that the proposal would consist of what is known as "affordable housing". The developer intended to construct it in conjunction with the Housing Association, which had expressed strong interest in the development.
2. The Inspector allowed the appeal and granted planning permission, subject to conditions. He did so in a decision letter, whose relevant parts read as follows:

3. I consider the main issues in this case are whether the site complies with the rural exception sites policies for affordable housing in the development plan. If not, are there any other material considerations which would indicate the site's suitability for affordable housing.

Clarification on the Planning Status of the Site & its Location.

4. The site is previously developed land as defined in Planning Policy Guidance Note 3: 'Housing' (PPG3). The appellants agreed that the site was not adjoining Chippenham and I agree with that assessment. However, they are of the view that the site falls within or is adjoining the village of Allington. Allington has not been defined as a settlement by the Council in its Local Plan. In my assessment, a village comprises a group of dwellings, often with other buildings such as a church, shop or school, usually with a central core. I have come to the conclusion that Allington is not a village. There is no church or school and the only shop (save for that at the petrol filling station on the site) is a farm shop which is not located centrally to the dwellings that comprise Allington. The various dwellings that I was referred to and which in the appellants' view comprise the village of Allington are scattered over a relatively large area; there is no grouping of those dwellings and they do not form a cohesive community. The only common factors that they share are their postal address (ie Allington) and they all fall within the same administrative area at Parish level. Accordingly, I conclude that the site is not within or adjoining a village and is for the purpose of planning policy located within the open countryside.

Planning policy

5. The development plan for the area includes the Regional Planning Guidance for the South West (RPG 10), the Wiltshire Structure Plan (2001) and the North Wiltshire Local Plan (2001). I have been referred to the desirable maximum walking distances for residential development set out in RPG 10, Structure Plan Policies DP8, DP9 & DP15 and various supporting paragraphs and Local Plan Policies RH8, RH11 RH20, RH21 and various supporting paragraphs.

6. Policy DP8 explains that provision should be made for affordable housing on appropriate sites at villages. I have explained above that Allington is not a village, therefore the site is not within or adjoining a village. Policy DP9 explains that in the open countryside the appropriate re-use of previously developed land should be encouraged. Paragraph 4.60 explains that such sits may have special advantages which should be beneficially used rather than left to decay and become unsightly. However, housing should be concentrated at towns and main settlements. Policy DP15 explains that development in the open countryside should be strictly controlled. Isolated new houses should require special justification. The Council accepted that the proposal to provide affordable housing on the site could amount to a special justification. I do not share that view as there is a specific Structure Plan Policy dealing with affordable housing.

7. Policy RH8 relates to residential development within settlements with a defined framework boundary. Policy RH11 explains that new dwellings outside the physical limits or frameworks of settlements will not be permitted unless justified as affordable housing in accordance with Policy RH21 (Affordable Housing on Rural Exception Sites). However, Policy RH21 only allows affordable housing on small sites within or adjoining villages with framework boundaries. As this site is not within or adjoining a defined settlement or village none of these Policies are relevant to the determination of this appeal.

8. I have also been referred in general to advice in Planning Policy Guidance note 13:' Transport'.

Reasons

Does the site comply with the rural exception sites policies for affordable housing in the development plan?

9. I have explained in the Policy Section above the various development plan policies relating to the affordable housing. I do not find any policy support for the proposal in the policies of the development plan that I have been referred to. Accordingly, the proposal must be contrary to the development plan.

Other material Considerations.

10. There is no doubt that there is a pressing need for affordable housing in the District and there is no realistic prospect that such a need will be met in the near future. The site is located about 1 km from the settlement boundary of Chippenham. The Council have adopted Document 5 as Supplementary Planning Guidance (SPG). It was agreed that this SPG did not assist in assessing the correct location for affordable housing. However, it is clear from the SPG that the greatest need for affordable housing in the District arises in the nearby town of Chippenham.

11. It is necessary to assess whether this location of the site would be satisfactory for the future occupants of the proposed dwellings. I was informed that there is no affordable housing in the Parish which covers the Allington area. Accordingly, children growing up in this Parish will have to move away from their parents when they set up their own homes unless they can afford to buy or rent properties on the open market.

12. A Housing Association has expressed their interest in developing the site for affordable housing. Clearly, they do not consider that the site's location away from Chippenham would be detrimental to the well-being of the likely occupiers of affordable housing on this site. The Council also agreed that the imposition of an appropriately worded condition could ensure that dwellings built pursuant to a permission resulting from this appeal would remain as affordable housing.

13. Clearly, any occupiers of dwellings built on this site would be likely to seek employment, education, shopping, leisure and health facilities in the surrounding area and mainly within Chippenham. The Government's aim is to promote accessibility to such facilities by public transport, walking and cycling. I have had regard to the walking distances referred to in RPG 10. The proposal would fail to meet the criteria as the footway that needs to be used in all cases is not lit and does not have the benefit of natural surveillance from adjacent properties over much of its length. However, during daylight hours the site is within the maximum walking distance to a food shop. Further, the appellants are willing to secure the provision of bus stops closer to this site and this would ensure that they too were within the maximum walking distances specified. However, the site would not be within the maximum walking distances of a primary school, bus station or railway station.

14. However, PPG 13 explains that walking is the most important mode of travel at a local level and offers the greatest potential to replace short car trips, particularly under 2 km. Further, cycling also has the potential to substitute for short car trips, particularly those less than 5 km. All facilities that would be reasonably required by future occupiers of the site fall within the 5 km cycling distance and the vast majority of facilities would be within the 2km walking distance. Further, PPG 13 explains that the car will continue to have an important part to play and for some journeys, particularly in rural areas, it will remain the only real option for travel.

15. I have been advised that in January 2005 there were 21 buses which passed the site each weekday. The Council did not dispute this figure. Mr Reynold's view was that no buses ran along that part of the Bristol Road adjacent to the site. I went to the nearest bus stops and there were no timetables on display or even bus stop signs. I was advised by the appellants that buses stopped on request. Further I was advised that one member of staff working for the appellants on the site travelled to it by bus from Chippenham. On balance, I consider that it is likely that there are bus services which pass the site. However, I was not given any information regarding the current levels of bus services passing the site or the numbers or times of buses which pass the site at weekends. Further still, on the information I was provided with there are no buses towards Chippenham before 09:47 hours and no buses passing the site after 19:59 hours.

16. It is clear from all the information that I have been provided with that the site is not in a highly sustainable location. However, in my view, there would be opportunities for residents living on the site to walk, cycle or use public transport for some of their journeys.

17. Whilst I have expressed my concerns about the deficiencies in the proposal regarding suitable transport options I consider that the decisive factor in this case is the clear interest by the appellants, in partnership with a recognised Housing Association operating in the area to provide much needed affordable housing.

18. I therefore conclude that this site would be suitable for the provision of affordable housing.

Other matters

19. I have had regard to the concerns raised by the occupiers of Fielding. I am satisfied that the Council could ensure that any dwellings erected on the site were positioned so as not to cause any material loss of outlook for them. Further, through the proper design of any scheme I am satisfied that security for their property would not be undermined by the proposal. Finally, I am aware of the private right of way which crosses the site. If this was interfered with then there is a private legal remedy available for enforcing those rights.

20. Concerns were also raised by Mr Reynolds about the visual impact of the proposal on the character and appearance of the area, flooding on the site and the need to provide screening and security. In my assessment it would be possible to ensure, through the appropriate levels of control available at the reserved matters stage, that the proposal provided a positive enhancement to the visual appearance of the area. The appearance of the buildings currently on the site is not attractive; the signage and canopy structure for the petrol filing station is garish in this location; and the extensive areas of hardstanding used for the sale and display of cars (including the related signage) also appears out of place in this countryside location. Further, I am satisfied that through appropriately worded conditions the risk of flooding on the site from surface water can be adequately addressed. Notwithstanding the complaint regarding loss of trees from the site the Council can ensure that adequate new landscaping is introduced if the site is developed as proposed. Finally, the issue regarding the screening of the site and the protection of adjoining land can also be addressed through reserved matters and/or conditions.

21. I am aware of the concerns raised regarding precedent for other previously developed land outside towns and villages in the District. However, each application must be determined on its own individual merits. Whilst I know that the site is not highly sustainable in terms of accessibility it performs far better than many other previously developed sites in the open countryside.

Conclusions

22. For the reaons given above and having regard to all other matters raised, I conclude that the appeal should succeed."

3. The statutory framework for the determination of an appeal is provided, in so far as is relevant to the matters before me, by section 70 of the Town and Country Planning Act 1990, and that provides in subsection (1):

"Where an application is made to a local planning authority for planning permission -

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

I need not read subsection (3). Section 70(1) and (2) were applied to the determination of appeals by section 79(4) of the 1990 Act. Section 38(6) of the Planning and Compulsory Purchase Act 2004 is also relevant. It states:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

4. Mr Green, counsel for North Wiltshire District Council, argues as follows: first, he says that if a Development Plan has addressed the need for affordable housing and has determined that locations outside settlements should be avoided, it is not permissible, in the absence of a change in circumstances or of evidence that the basis or approval process of a policy was flawed, to rely on a need for housing as a material consideration which could outweigh the conflict with the Development Plan.
5. Secondly, he says that the Inspector has wrongly regarded the policies on location as irrelevant and has therefore failed to take into account in the balance the substantial conflicts caused by the proposal being for housing development in the open countryside. Thirdly, and alternatively he says the Inspector's reasoning was inadequate. Fourthly, he says he failed to consider the national policy in Planning Policy Guidance Note 3 and Planning Policy Statement 7. Fifth, he says that the Inspector had failed to address the Local Planning Authority's concerns about the precedent in an adequate manner and, sixthly, Mr Green contends that the decision was perverse.
6. Mr Maurici, for the Secretary of State, contends first, that the Inspector properly identified that the proposal would be in breach of National and Development Plan policies on the location of housing. Secondly, he had not treated the relevant policies as irrelevant. Thirdly, he was entitled to treat the need for affordable housing, and the interest by the Housing Association, as material considerations for the purposes of section 38(6) of the Planning and Compulsory Purchase Act, and section 70(1) of the Town and Country Planning Act. Fourthly, he contends that the Inspector had impliedly considered relevant national policy. Fifthly, he contends that precedent was properly addressed by the Inspector and, sixthly, Mr Maurici says the Inspector's decision was not perverse.
7. I remind myself of the standard of reasoning required of the passages in the Inspector's decision letter, and I remind myself of the speech of Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36:

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational a rational decision on relevant grounds. But such adverse interference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

8. I remind myself also that this court is not a court of merits. My concern is only whether the decision letter was lawful in its consideration of the appeal and in the adequacy of its reasoning. One must read the decision letter as a whole. Once one reads the decision letter as a whole, in my judgment its structure and meaning are as follows: first, at paragraph 3 it identifies the main issues. It identifies them in language which is certainly clumsily phrased, but, in my judgment, once one reads paragraphs 4 to 7 the meaning of paragraph 3 is clear.
9. The first question was: given the fact that development in the open countryside would be in breach of policy unless there were an exception, he has asked himself whether the proposal for development on this site complies with the rural exception site policies for affordable housing in the Development Plan. Secondly, if not he has asked himself: are there any other material considerations which would indicate the site's suitability for affordable housing? Mr Green took a point on the use of the word "site". While I agree with Mr Green in terms of the finer niceties of the beautiful use of English, in my judgment it does not assist us on the meaning of the paragraph.
10. In paragraph 4 the Inspector identified the site as one which did not lie within or adjoining the village, and he identified and concluded that for planning policy purposes it must be treated as located within the open countryside. Paragraphs 5, 6 and the first part of paragraph 7 are where he sets out, and identifies, the policies which lead to the conclusion that, absent any exceptions being made for affordable housing provision, housing development on this site would be in breach of a policy. Paragraph 7 also identifies policies which make exceptions for housing outside village and settlement limits if they are justified under Policy RH21 in the Local Plan on affordable housing.
11. It concludes in that paragraph that those policies do not permit an exception on such sites. Paragraph 8 then decides that the proposal has not complied with what he calls "the rural exception sites policies", that being the heading of paragraph 9. The last sentence in my judgment in paragraph 9, which reads:

"Accordingly, the proposal must be contrary to the development plan."

amounts to a conclusion that if the exceptions do not apply, then the proposal, being for housing in the open countryside, must be regarded as being contrary to the Development Plan.

12. I agree with Mr Green that paragraphs 3,7 and 9 are poorly phrased and could have been written in an altogether clearer fashion, but I consider that the reasoning is adequate. For completeness I should add that I do not consider that the Inspector is required to parade the effect of national policies in the decision letter. None of them posed any test significantly different from those in the Development Plan, which reflected national policies.
13. The Inspector in his decision letter then considered the other material considerations. He was quite entitled under section 38(6) of the Planning and Compulsory Purchase Act to look at them and consider whether they outweighed the conflict with the Development Plan. His choice of language in paragraph 3 is again capable of considerable improvement, but his purpose is apparent, that is, he was asking whether the case for development outweighed the Development Plan case against it, which is, in effect, the test which section 38(6) sets for the decision-maker.
14. I do not accept that an appellant is prevented from raising matters which could have been raised in the Development Plan process, or were raised. There is nothing in section 38(6) which prevents him from doing so. Indeed, it is hard to see how Mr Green's argument on this could possibly be right. The need for affordable housing is patently a material consideration. If he is right, it could not be raised as a material consideration on any application under section 70, or an appeal under section 78, if it had been previously investigated in the Development Plan process. That may be a powerful argument on the weight which such a case on need should attract, but it cannot, in my judgment, deprive it of materiality.
15. I consider that the Inspector's treatment of precedent was brief but adequate. It is significant that the Local Planning Authority case was limited to generalised concerns only, and did not give any detail of any particular areas thereby threatened. No more than what appeared in the Inspector's decision letter was required to deal with the matter adequately from a legal point of view.
16. Lastly, as to perversity, that is a notoriously difficult case to run on a section 288 challenge. In this case I am quite satisfied that this decision letter was neither perverse nor irrational, and the perversity challenge fails. I can well understand why the Local Planning Authority expected a different result from the appeal hearing, but I am not sitting as a judge of merits. I also consider that the language of the decision letter could have been clearer and better directed, but I consider that overall it was adequate and I am left in no doubt of the reasons for the Inspector's decision. This appeal fails.
17. MR MAURICI: As well as dismissing the application I ask for an order for the costs. I do have a schedule. I do not think it is that useful.
18. THE DEPUTY HIGH COURT JUDGE: Has it been provided to Mr Green?
19. MR GREEN: I do not dispute anything, save for the amount.
20. THE DEPUTY HIGH COURT JUDGE: That is not the answer to my question: yes or no is the answer. Mr Green: "Is there any dispute?" is the next question which you may answer, if you wish.
21. MR GREEN: Only as to the length of time taken up with this hearing. I would ask for a pro rata reduction.
22. THE DEPUTY HIGH COURT JUDGE: How long did you expect it to take?
23. MR GREEN: I think five hours has been put down.
24. THE DEPUTY HIGH COURT JUDGE: I know I come to this having done a little planning before, but even in front of a judge who has never been introduced to town and country planning before I am surprised it was estimated at five hours.
25. MR MAURICI: Two hours. I will have to work out how much that is. It comes to £4,900.03.
26. THE DEPUTY HIGH COURT JUDGE: Mr Green?
27. MR GREEN: There is no objection to that.
28. THE DEPUTY HIGH COURT JUDGE: Counsel have properly exchanged the estimates as to the costs, so I make an order in favour of the Secretary of State for the sum of £4,900.03. Are there any other applications?
29. I am grateful to counsel for the efficiency of their submissions, and, if I may say so, the skeleton arguments are what skeleton arguments are meant to be. I am grateful to you both. I propose the order is put in as page 19A.
30. MR GREEN: My Lord, yes.