QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DARTFORD BOROUGH COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
- and -
SKILLCROWN HOMES LIMITED
Cain Ormondroyd (instructed by Treasury Solicitor) for the Defendant
Hearing date: 29 February 2012
Crown Copyright ©
Mr Justice Eady :
"(1) If any person –
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds –
(i) that the action is not within the powers of the Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section. …
(2) Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish (sic) to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the High Court under this section."
"The proposed development of previously undeveloped garden land, including the demolition of existing housing and the creation of a new access road, would result in an undesirable form of development and an unacceptable erosion of the character of this part of Joydens Wood, diminishing the visual qualities of the street scene, contrary to PPS3 (Housing), Policies B1, H7, H8 and H10 of the adopted Local Plan 1995 and Policies DD11, H4 and H8 of the Dartford Local Plan Review Second Deposit Draft 2004."
The second ground was concerned with whether the proposed layout reached the appropriate spatial standards and with matters of scale and proportion. It is not directly relevant to the present application.
"NEW POWERS FOR LOCAL AUTHORITIES TO STOP 'GARDEN GRABBING'
On 9th June 2010 Government implemented the commitment made in the Coalition Agreement to decentralise the planning system by giving Local Authorities the opportunity to prevent overdevelopment of neighbourhoods and 'garden grabbing'.
I am writing to confirm that the Government has amended Planning Policy Statement 3: Housing (PPS3) with the following changes:
- private residential gardens are now excluded from the definition of previously developed land in Annex B
- the national indicative minimum density of 30 dwellings per hectare is deleted from paragraph 47
Together these changes emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas.
The amended policy document sets out the Secretary of State's policy on previously developed land and housing density. Local Planning Authorities and the Planning Inspectorate are expected to have regard to this new policy position in preparing development plans and, where relevant, to take it into account as a material consideration when determining planning applications. I am copying this letter to the Planning Inspectorate.
"When making planning decisions for housing developments after 1st April 2007, Local Planning Authorities should have regard to the policies in this statement as material considerations which may supersede the policies in existing Development Plans."
"Residential development on previously unidentified sites within both built-up areas and villages confines will only be permitted if the following criteria are met:
1. The site is on previously-developed land and in a location that would facilitate sustainable development … "
It is not disputed that the appeal site was (i) "previously unidentified" and (ii) not "on previously-developed land".
i) The footnote to paragraph 59 of PPS3 (2011 edn):"Windfall sites are those which have not been specifically identified as available in the local plan process. They comprise previously-developed sites that have unexpectedly become available."
ii) The footnote to paragraph 59 of the previous edition of PPS3, which applied at the time of the decision in December 2010 and was expressed in the same terms.
iii) The Chief Planner's letter of 15 June 2010, confirming that the Government had amended PPS3 to exclude residential gardens from the definition of "previously-developed land" in Annex B.
i) the Inspector erred in reaching his decision by failing to take into account a relevant consideration, namely, that footnote 31 to paragraph 59 of PPS3 restricts windfall sites to those which have been previously developed and he ought to have concluded that the site of the proposed development was thus not capable of being a windfall site;
ii) the Inspector took into account an irrelevant consideration in considering the site to be a windfall site when it was plain that the site was not capable of being a windfall site pursuant to footnote 31 of paragraph 59 of PPS3;
iii) the Inspector's conclusion that the site was an appropriate site for a windfall site was irrational and a decision that no reasonable decision maker could have come to, considering the definition of windfall sites at footnote 31 to paragraph 59 of PPS3.
" … Policies from the Local Plan Review, dated 2004, include H4, which, amongst other matters, require that windfall sites should only occur on previously developed land. However, the plan has not been adopted, which diminishes the weight that may be applied to it, and it is likely that the changes to PPS3 would raise issues which were not envisaged at the time of its preparation … "
It is suggested that the Inspector's decision to apply little or no weight to Policy H4 was irrational, since it was in accordance with the changes made to PPS3 and explained in the Chief Planner's letter of 15 June 2010. On this basis, it is again submitted that:
i) the Inspector failed to take into account a relevant consideration, namely, footnote 31 to paragraph 59 of PPS3, which makes it plain that this site could never be a windfall site (not being previously developed land) so that Policy H4, being in accordance with the requirements of PPS3, was a material consideration which ought not to have been diminished by reference to the changes to PPS3;
ii) the other requirements of Policy H4 were not in conflict with the amendments to PPS3 and, accordingly, it was irrational of the Inspector to diminish the weight to be attached to Policy H4 as though there were a conflict between it and PPS3.
"The Council advised that the land is not needed in order to meet housing supply targets, and it was emphasised that it does not form a priority location for development in terms of PPS3. However, it falls within an existing urban area and, despite some claims to the contrary, there was not a compelling case to show that it is an unsustainable location. In addition, the existing gardens are large in relation to the size of the dwellings they serve, and they do not appear to be intensively used. The site has previously had planning permission for 13 developed dwellings, albeit under different planning policies in 1998. Overall, the land appears an appropriate location as a windfall site to contribute to the supply in the area."
" … and it is likely that the changes to PPS3 would raise issues which were not envisaged at the time of its preparation."
That may be a little opaque, but it was common ground between counsel that "the changes to PPS3" referred to must be those already identified (on "garden grabbing"). Since gardens were, from June 2010, to be excluded from the category of "previously developed" land, it only seems realistic to suppose that any responsive changes to H4 would be, if anything, more likely to discourage development on this site. But it is unnecessary and inappropriate for me to speculate.
i) the reference to a "windfall site";
ii) the potential (but unidentified) inconsistency apparently perceived between Policy H4 and the provisions of PPS3, as amended;
iii) the apparent view of the Inspector that it was for the Claimant to show a compelling case that the location was unsustainable.
They each involved an error of law and/or each of them was irrelevant to the determination the Inspector had to make.