QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|(2) WEST BERKSHIRE COUNCIL||Defendants|
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Charles Banner (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Emmaline Lambert (instructed by West Berkshire Council) appeared on behalf of the Second Defendant
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"The nature and scale of development in rural areas should seek to encourage and sustain balanced rural communities. Development outside of settlements, allocated sites and other defined areas... will be permitted only where:
(a) it will benefit the rural economy in accordance with Structure Plan Policy C2 and Local Plan policies ENV.16, ENV.19 and ENV.20; or(b) it will provide beneficial use of a brownfield site in accordance with Structure Plan Policy BU3 and Local Plan policies OVS.1, and OVS.2; or(c) it is within the permissible categories of housing development in the countryside; and provided it will maintain or enhance the environment and is appropriate in scale, form, impact character and siting to its location in the countryside."
"The Council, where justified as an exception to other policies of this Plan, will grant permission for small scale affordable housing schemes to meet identified local needs on sites adjacent to existing rural settlements provided;
a) the need has been established by way of a recent local survey of housing need; andb) a scheme is prepared and agreed to reserve and control the occupancy of the dwelling for local needs; andc) the development does not adversely affect any landscape features that are important to the rural character of the area; andd) the development accords with Policy OVS.2;e) provision should be made for such schemes to be managed and occupied so that they remain affordable in perpetuity."
"The Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided or will be provided at the appropriate time so as to ensure the proper planning of the area. In addition, when considering proposals for development opportunities will also be sought for securing environmental improvements and community benefits. Such provision will relate to those works necessary to the grant of planning permission, and which are relevant, reasonable and directly related and fairly and reasonably related in scale and kind to the proposed development, and may for example include:
(a) affordable housing; and/or(b) landscaping, including major structural landscaping on sensitive or exposed sites; and/or(c) improved access for pedestrians, cyclists and people with disabilities; and/or(d) public transport facilities and services, public car parking, provision for services vehicles or other highway improvements; and/or(e) green travel plans where major developments are proposed; and/or(f) the implementation of measures enabling the use of sustainable transport modes, such as walking, cycling and public transport; and/or(g) space and facilities for recreation, community and medical facilities; and/or(h) provision of re-cycling facilities; and/or(i) the repair of listed buildings and the preservation/enhancement of Conservation Areas and sites of archaeological interest; and/or(j) the management of land and water areas for nature conservation purposes; and/or(k) public art in appropriate places."
"4. The appeal site is part of the countryside just outside the defined settlement of Lambourn. Policies ENV.18 and HSG.2 of the West Berkshire District Local Plan 1991-2006 restrain development here but allow affordable housing for local needs to be treated as an exception if it is in accordance with Policy HSG.11. In this case I find no evidence that such a need has been established by way of a recent local survey of housing need, no prepared and agreed scheme to reserve and control the occupancy of the proposed houses for local needs, and no clear provision to ensure that the affordable housing would be managed and occupied so that it would remain affordable in perpetuity. For these reasons I consider that the appeal scheme is not in accordance with Policy HSG.11. I do not accept that the description of the development as affordable housing would itself be sufficient. Nor, with the information before me, am I satisfied that the shortcomings would be remedied and the necessary provision secured by means of a reasonable planning condition. Indeed, no particular wording for such a condition has been suggested by the appellant, and none is included in the list of conditions suggested by the Council.
7. Like Policy DP4 of the Berkshire Structure Plan 2001-2016, Local Plan Policy OVS.3 states that the Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided or will be provided at the appropriate time so as to ensure the proper planning of the area. Accordingly the Council seeks contributions in respect of transport, libraries and the Primary Care Trust. Having regard to the Council's supplementary planning guidance on these matters, I have no good reason to doubt the basis for those contributions. Even if the prospective occupiers of the proposed development are already living in the area, I cannot assume the same for those who would occupy the accommodation vacated by the former, were the appeal scheme to come to fruition. Therefore I do not accept that additional demand for local infrastructure would be unlikely to result. While the Council has been prepared to waive contributions in some 100 per cent affordable housing schemes in order to allow the schemes to be financially viable, I find no policy basis for the inference that this would generally be the case in all 100 per cent affordable housing schemes. Bearing in mind my conclusion on the first main issue, I would not have high expectations of the contributions being waived in the case of the appeal scheme. In the absence of a planning obligation to secure such contributions, or another means of accommodating the resulting demands on infrastructure, I conclude that the appeal scheme would not make adequate provision for infrastructure made necessary by the development and that it is not in accordance with Policy OVS.3."
"1. The applicant has failed to satisfy the Council that the new homes will be made available at a truly affordable price, in perpetuity, nor has he submitted an up-to-date local housing needs survey to substantiate the justification for this new scheme in the open countryside. Further the size of the units appear small to accommodate local housing standards in the district and there is no clear evidence base to substantiate 100 per cent mix of low cost equity units as opposed to a minimum 70 per cent rented accommodation normally expected in the district. Accordingly the application is clearly contrary to Policy HSG.11 of the West Berkshire District Local Plan 1991-2006 Saved Policies 2007 and Policy H5 in the Berkshire Structure Plan 2001-2016 Saved Policies 2008. It is thus unacceptable.
2. The proposed access is unsuitable due to the unknown detail of the arched entrance and forward visibility splays to accommodate the traffic which would be generated by the scheme and so is contrary to Policy OVS.2 in the West Berkshire District Local Plan 1991-2006 Saved Policies 2007.
3. The layout does not comply with the Council's adopted standards for vehicle parking which could result in additional pressures for on-street parking on the Wantage Road so adversely affecting road safety and the free flow of traffic. Further the internal highway layout does not appear to accommodate the necessary on-site turning facilities for refuse vehicles and so the layout is considered to be contrary to Policy OVS.2 of the West Berkshire District Local Plan 1991-2006 Saved Policies 2007.
4. The applicant has failed to prepare an ECO HOMES pre-assessment rating of GOOD which would comply with the Council's adopted standards for new homes in the district. Accordingly, notwithstanding the limited information submitted with the application, it is considered contrary to Policy OVS.10 in the West Berkshire Local District Plan 1991-2006 Saved Policies 2007. It is thus unacceptable.
5. The applicant has failed to enter into a section 106 planning obligation, such that the impact of the new occupants on the Council's services, facilities and infrastructure will be mitigated. Accordingly, the application is considered to be contrary to Policy OVS.3 in the West Berkshire District Local Plan 1991-2006 Saved Policies 2007, Policy DP4 in the Berkshire Structure Plan 2001-2016 Saved Policies 2008, the advice contained within Circular 5/2005 and the Council's SPG4/04. The application is thus considered to be unacceptable on this basis."
"The appeal site has been the subject of a previous appeal decision under Ref: APP/W0340/A/07/2060166 dated 3rd March 2008. The scheme the subject of the previous decision, which was dismissed, was for nine affordable, sustainable houses with a local occupancy constraint. I have borne the previous decision in mind when making my determination."
"The appellant submitted a unilateral undertaking made under the provisions of section 106 of the Town and Country Planning Act 1990 in connection with the appeal. The undertaking is dated 3rd November 2008 and contains covenants given by the appellant. However, I note that the appellant is not the current owner of the appeal site. The undertaking states that he will enter a conditional agreement for the purchase of the site subject to receipt of a satisfactory planning permission. Given this information, I am not therefore satisfied that the appellant has an interest in the land which would ensure that the covenants contained in the undertaking would run with the land and bind future owners of it. I therefore give little weight to the undertaking."
"... (1) Whether or not the appeal scheme's provision for affordable housing is sufficient to justify treating the scheme as an exception in terms of development plan policies that seek to limit new housing development in the countryside; (2) Whether the scheme makes adequate provision for access and parking; (3) Whether the scheme makes adequate provision for infrastructure made necessary by the development, particularly in terms of transport, libraries, the Primary Care Trust and public open space; and (4) Whether the scheme would be provided with an adequate Eco Homes rating."
"6. The appeal site lies in open countryside just to the north of the defined settlement at Lambourn. The proposal is to erect nine affordable houses on the site and the application form also refers to the provision of 15 parking spaces. The Design and Access Statement submitted with the application refers to the houses having two storeys with eaves' heights of about 5-5.5 metres. It is indicated that the mix of housing would be likely to be one one-bedroomed house, four two-bedroomed houses and four three-bedroomed houses, though the size of houses would be according to occupier demand.
7. Policy ENV.18 of the West Berkshire Local Plan 1991-2006 Saved Policies 2007 seeks to restrain development within the countryside. However, affordable housing for local needs can be treated as an exception if it accords with Policy HSG.11. Policy HSG.11 requires that the need for affordable housing on rural exception sites be established by way of a recent local survey of housing need. There was no such survey, or detailed results of such survey before me. However, I was provided with extracts from some completed questionnaires from a local housing needs survey carried out by the appellant. I consider that the extracts provide a snapshot of some aspects of housing need in Lambourn and the surrounding area but, to my mind, they are not as comprehensive or robust in terms of evidence as the results of a full local housing needs survey would be. I therefore give limited weight to the extracts.
8. The information supporting the application suggested that the proposal would provide intermediate housing with fixed-share equity purchase being available. However, the Council's supplementary planning guidance entitled 'Delivering Investment from Sustainable Development - Topic Paper 1 - Affordable Housing' requires a 70:30 tenure split of rent to new build homebuy on affordable housing sites. The extracts from the completed questionnaires referred to in the previous paragraph do refer to some need for intermediate housing in Lambourn and the surrounding area, but I have given limited weight to the extracts. Having regard to the evidence before me, I am not therefore satisfied that, even if the need for affordable housing had been established, the level of intermediate housing proposed within the scheme would have been appropriate. In this context, I also note that Planning Policy Statement 3: Housing encourages a mix of tenures on housing sites.
9. Given that I am not satisfied that the covenants contained in the unilateral undertaking would run with the land, it follows that there is no mechanism in place to ensure that occupation of the units would be directed towards local needs through a cascade mechanism. In this context, I note that the cascade mechanism referred to in the undertaking referred to the Council's district and beyond, rather than to Lambourn and surrounding parishes. This suggests to me that the cascade mechanism was not accurately targeted at meeting local need. There would also be no binding covenant in place to ensure that the units would be sold at a price which would be truly affordable and would remain so in perpetuity.
10. The Council referred to the size of the proposed units in its first reason for refusal. However, given that the application before me is in outline with all matters reserved, apart from scale, and the appellant has indicated that the size of units would be variable, I consider that this could be dealt with at reserved matters stage.
11. Overall, I conclude that the proposal's provision for affordable housing does not justify treating the scheme as an exception to development plan policies that seek to limit the spread and impact of new development in the countryside. The proposal would, therefore, be contrary to Policies ENV.18 and HSG.11 of the Local Plan."
"16. Policy [OVS.3] of the Local Plan states that the Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided at the appropriate time to ensure the proper planning of the area. The Council has also adopted supplementary planning guidance entitled 'Delivering Investment from Sustainable [Development]', which goes into considerable detail as to how contributions should be assessed. In this case, the Council seeks contributions in respect of transport, libraries, the Primary Care Trust, and off-site public open space. After considering the policy background and the Council's reasoning behind the amounts sought, it is my view that the basis for the contributions is well founded.
17. Information before me indicates that the appellant is prepared to make a contribution towards the amounts sought by the Council, but it is clear that agreement has not been reached on any reduction or waiver of contributions. Although some of the prospective occupiers of the proposal may live in the area, the accommodation that they now occupy could be occupied by persons from outside the area upon their vacation of it. In my opinion, it follows that additional demand for infrastructure would be likely to occur as a result of the proposal. Although contributions have been waived in some cases for affordable housing schemes, I understand that this has been done following an open book approach with applicants providing information as to the commercial viability of the schemes in question. However, this has not taken place here.
18. After considering the evidence before me, I therefore consider it appropriate that the contributions sought by the Council should come forward. There is no mechanism before me, such as a unilateral undertaking under the provisions of section 106 of the 1990 Act to facilitate the payment of the contributions. I therefore conclude that the scheme does not make adequate provision for infrastructure contrary to Policy [OVS.3] of the Local Plan."
"In arriving at my decision, I have been mindful that the appellant would use sustainable methods in the construction of the units which would lead to woodland restoration but this point does not outweigh the cogent harm to planning objectives that I have found. Reference has also been made to the human rights of the residents of the district in terms of them obtaining satisfactory housing but I have found that the appellant has not established need for affordable housing on the appeal site."
The issues in the claim
"• Whether or not the appellant has an interest in the land
• If there is evidence of a housing need".
Those, he says, are the two principal issues.
"• The level of Intermediate housing, and, its use to Deliver Investment."
"Clarification on these three points will thereby compel the local authority to openly discuss these points; something they have refused to do, up to this point."
Issue 1: The claimant's interest in the appeal site
"The Applicant has or will enter into a conditional agreement for the purchase of the Land free of encumbrances subject to the receipt of a satisfactory planning permission granted in accordance with the planning permission, full details of which are set out in schedule 2 hereto."
"... The purchaser of the development site may also have an 'interest', for example where he/she is a party to a contract conditional upon obtaining planning permission for the land, or has a right under an option to purchase the land. At an appeal, the Inspector may seek evidence of title if it has not been demonstrated that the developer has the requisite interest."
Issue 2: Housing need
Issue 3: Intermediate housing