England and Wales High Court (Administrative Court) Decisions

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

		Manchester CJC 1 Bridge Street West Manchester M60 9DJ
		25th April 2013

HH Judge Pelling QC

Introduction

1. This is the hearing of a claim by the claimant ("CEBC") made pursuant to s.288(1) of the Town and Country Planning Act 1990 ("TCPA") by which CEBC seeks to have quashed and remitted a decision by the first defendant ("SSCLG") contained in a decision letter dated 6^th December 2012 ("the Decision Letter") by which he allowed the appeal of the second defendant ("RES") against the refusal by CEBC of outline planning permission for the erection of up to 269 dwellings and associated works at a site south of Hind Heath Road, Sandbach, Cheshire ("the Scheme"). The third to sixth defendants own the land on which the Scheme is to be constructed. The seventh defendant has an option over the land.
2. Originally the claim was advanced by reference to two grounds. Ground 2 concerned an allegation that SSCLG had erred by failing to explain the difference between the approach adopted in the Decision Letter and that which had been adopted in a decision relating to another scheme in the immediate area. That Ground was abandoned by Mr. Carter when he opened CEBC's case in the face of reliance by both defendants on Arun DC v. SSCLG [2013] EWHC 190. In those circumstances, I need not consider Ground 2 further.
3. The parties refer to Ground 1 as the "prematurity" Ground. In substance the point is this: CEBC is in the course of preparing a new Local Plan for the Borough. This is referred to in the Decision Letter as "… the emerging Cheshire East C[ore] S[trategy]". The process has been delayed because of local government reorganisation that took place as long ago as 2009. In the result however, the appeal to SSCLG took place in circumstances where CEBC had not published a new Local Plan and publication was many months away. CEBC submitted to SSCLG that the process of plan making would be damaged if planning permission for the Scheme was granted and that planning permission should be refused on prematurity grounds because a new local plan was being prepared. This submission was rejected by the SSCLG in the Decision Letter.
4. CEBC challenges that conclusion by maintaining that in arriving at it SSCLG (a) failed to take into account a material consideration by concluding that the district housing requirement had not been determined through the emerging CS when the district housing requirement had been fixed by the Regional Strategy; (b) had misunderstood the policy on prematurity as set out in The Planning System – General Principles because in truth there is nothing within that policy that suggests that a prematurity argument depends on the fixing of a housing requirement and (c) failed to give adequate reasons for concluding that the housing requirement had not been fixed. The evidential basis for all these assertions depends upon the final sentence of Paragraph 25 of the Decision Letter which is the following terms:

"The Secretary of State notes from the representations that other sites not yet the subject of planning applications may come forward, but as the district housing requirement has yet to be determined through the CS, he does not consider that there is a strong prematurity argument in this case."

5. SSCLG and RES submit that this challenge is without substance because it involves reading one sentence out of context, is clearly unsustainable when the Decision Letter is read as a whole and is consistent with the relevant policy set out in The Planning System – General Principles. In truth, it is submitted, there is no discernible error in dealing with the prematurity issue.

The Decision Letter

6. In so far as is material for present purposes the Decision Letter was to the following effect:

"12. In this case, the development plan comprises the North West of England Plan - Regional Spatial Strategy to 2021 (RS), (September 2008); saved policies of the Cheshire 2016: Structure Plan Alteration (2005); and the saved policies of the Congleton Borough Local Plan First Review (LP) (2005). The Secretary of State considers that the development plan policies most relevant to the proposals are those summarised in the Inspector's report at IR16-IR25 and the Statement of Common Ground (Inquiry Document 3). An emerging Core Strategy Issues and Options Paper (CS) (2010) had been published at the time of the inquiry. Consultation on a draft CS is expected in Spring 2013.

…

18. The Secretary of State has considered the Inspector's reasoning and conclusions at IR144-151 in light of the policies in the Framework. He notes that there is no dispute between the parties that across Cheshire East there is not a 5 year land supply. The Inspector recorded the parties assessments that there is between 2.75 - 3.25 years supply, which equates to an estimated 5 year shortfall of between 2000 to 2600 new dwellings (IR145). He agrees with the Inspector that the proposed development would have a materially beneficial effect in helping to overcome the shortage in the supply of deliverable housing land in Cheshire East. He accepts the Inspector's view that this sizeable shortfall is a factor to which significant weight should be attached (IR145-IR146).

…

19. Before reaching his conclusions in paragraph 18 above, the Secretary of State carefully considered the updated strategic housing land availability assessment (SHLAA) (2011 and 2012 update) and the representations made in relation to it. He finds that although there is no agreement on the updated 5 year housing requirement and supply figures, and new sites have come forward since the inquiry, all parties agree that there is still not a 5 year supply of deliverable housing sites in Cheshire East. As the revised supply figures are not agreed, he does not rely on them in his decision making. However the figures are calculated, the Secretary of State finds that there is a lack of a 5 year land supply, without including an allowance for any buffer factor (a minimum of 5%) as required in the Framework,. The Secretary of State considers that the lack of 5 year land supply is a material consideration that reduces the weight that he attaches to development plan policies for the supply of housing. In this case, the Secretary of State considers that the failure to demonstrate a 5 year land supply is a significant factor weighing in support of the proposed development.

…

The effect of the proposal upon spatial objectives of the development plan

21. The Secretary of State has considered the Inspector's reasoning and conclusions on the effect of the proposal upon the spatial objectives of the development plan at IR160-166 in light of the policies in the Framework. He notes that there is no dispute between the parties that both the spatial strategy and the housing requirements of the RS should form the basis for the determination of the appeal. He recognises that the RS identifies Crewe as the priority town in Cheshire East for future growth (IR160). However, for the reasons given at IR161 he considers that there is still scope for new development in a town such as Sandbach. The Secretary of State notes that Crewe and Sandbach are two separate housing markets and not likely to be in direct competition (IR163). As the Secretary of State finds that there is a shortfall in 5 year land supply, he considers that the proposed development is required to assist Cheshire East meet its housing requirements. He agrees with the Inspector's conclusions at IR160 -164 and IR166 that the proposed development is consistent with the spatial objectives of the development plan.

22. For the reasons given at IR165, the Secretary of State gives the CS Issues and Options Paper very limited weight as the CS is still at a very early stage of preparation. He notes that since the inquiry, a place shaping consultation has been carried out, but consultation on a draft CS is not expected until spring 2013. The Secretary of State notes that Sandbach is a neighbourhood planning front-runner; that a Sandbach Town Strategy (STS) has been prepared by the community to inform the CS; and that it does not identify the appeal site for development. The Secretary of State considers that although a material consideration, it is an evidence base document and does not have the status of the development plan. It has been prepared in advance of the finalisation of future housing needs for Cheshire East and cannot prejudge the contribution that Sandbach may make to meeting those needs. For these reasons he considers that it should be given little weight at this stage.

23. The Secretary of State agrees with the Inspector for the reasons given at IR165 that the Interim Planning Policy for the Release of Housing Land (IPP) can only carry limited weight. The Secretary of State has also taken account of the Council's draft review of the IPP produced in May 2012, but although updated, this does not affect his conclusion that the document should only carry limited weight.

24. In his letter dated 7 August 2012 the Secretary of State invited representations on precedent and prematurity, in respect of the emerging Cheshire East CS. The Secretary of State has carefully considered those representations, together with the guidance on weight to be accorded to emerging plans and prematurity in Annex 1 of the Framework and The Planning System: General Principles (2005). Taking account of this policy and guidance, the Secretary of State does not consider that the representations increase the weight that can be attached to the emerging CS as it has not progressed from the issues and options stage to the preparation of preferred options or a draft plan. The Secretary of State notes from the representations that there are other potential sites that may come forward for housing development in Sandbach, including the appeal that is before him for redetermination at Middlewich Road/Abbey Road (APP/ R0660/A/10/2141564).

25. The preparation of the CS and related plans will enable potential sites to be assessed together but the Framework makes clear that housing applications should be considered in the context of the presumption in favour of sustainable development. Each case must be considered on its merits and in the light of current policies. The Secretary of State has carefully considered representations on whether allowing this appeal would prejudice the plan making process. The Secretary of State considers that the size of development proposed in this case is not so substantial, or the cumulative effect would be so significant, that granting planning permission would prejudice decisions about the scale, location or phasing of land for new development in the CS. The Secretary of State notes from the representations that other sites not yet the subject of planning applications may come forward, but as the district housing requirement has yet to be determined through the CS, he does not consider that there is a strong prematurity argument in this case.

26. In concluding on this issue the Secretary of State agrees with the Inspector that the proposed development would be consistent with the spatial objectives of the development plan (IR166). Furthermore, the Secretary of State does not consider that there is a case for refusing this appeal on the grounds of prematurity.

…

35. In reaching his conclusions the Secretary of State has carefully considered all the relevant material considerations, including the Inspector's report and the post inquiry representations. The Secretary of State agrees with the Inspector's overall conclusions on Appeal A, as set out at IR188-190. The Secretary of State notes that the Framework sets out the need to boost significantly the supply of housing. He considers that the lack of 5 year land supply means that the relevant policies for the supply of housing should not be considered up to date and that the presumption in favour of sustainable development is engaged.

36. The Secretary of State has considered whether the proposals are sustainable development and considered whether the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits assessed against the policies in the Framework. He considers that, on balance, the proposal represents sustainable development; although there are factors weighing against the proposal (IR188), there are also factors weighing in favour, such as the significant shortfall in housing land supply and affordable housing, which the appeal proposal will help to rectify, resulting in economic and social benefits. He accepts that there will be environmental dis-benefits, including the loss of countryside, and conflict with specific development plan policies; but he agrees with the Inspector that the proposed development would be consistent with the spatial objectives of the development plan and that the significant need for housing outweighs the disadvantages of the scheme. In conclusion he does not consider that the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits in this case. In reaching his decision he has taken into account the concerns regarding prematurity and impact on the emerging CS and STS. However, he does not consider that they outweigh his decision to allow the appeal."

The Relevant Policy

7. The relevant policy is contained in Planning System – General Principles 2005, which in so far as is material is to the following effect:

"PREMATURITY

17. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.

18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:

- Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.

- Where a DPD has been submitted for examination but no representations have been made in respect of relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted. The converse may apply if there have been representations which oppose the policy. However, much will depend on the nature of those representations and whether there are representations in support of particular policies.

19. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process."

The Relevant Legal Principles

8. The relevant principles are not in dispute. The exercise of planning judgment and the weight to be given to the various considerations is exclusively for the decision maker in the absence of a rationality challenge – see Seddon Properties v. SSE (1981) 42 P &CR 26. In consequence, a challenge of this sort is not the opportunity for a review of the planning merits – see Newsmith v. SSETR [2001] EWHC Admin 74. In relation to a reasons challenge, the applicable principles are those identified by Lord Brown in South Bucks DC v. Porter (No.2) [2004] UKHL 33 [2004] 1 WLR 1953 at Paragraph 36 in these terms:

"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 decision on relevant grounds. But such adverse inference 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."

Discussion

9. It was submitted by CEBC that SSCLG has failed to take into account the fact that the district housing requirement was fixed and contained in the Regional Strategy figures and thus that SSCLG had made an error of law. I am not able to accept that submission.
10. Paragraph 12 of the Decision Letter identifies as part of the relevant development plan the Regional Spatial Strategy for the Northwest of England. Having identified in Paragraphs 18 and 19 of the Decision Letter that it was common ground between all parties that there was not a 5 year supply of deliverable housing sites in Cheshire East that equated to an estimated 5 year shortfall of between 2000 to 2600 new dwellings, and having concluded that this was a significant factor in support of the proposed development, the Decision Letter then said in Paragraph 21 that there was no dispute between the parties that the housing requirements identified in the Regional Strategy should form the basis for the determination of the appeal. The submission I am now considering involves in effect ignoring those parts of the Decision Letter I have mentioned in this paragraph and focusing exclusively on the sentence of Paragraph 25 identified by CEBC. This is an impermissible approach applying the principle that decision letters "… must be read in a straightforward manner …".
11. The SSCLG's reasoning seems entirely clear. He identified the materials that together contained the only extant development plan available as being the material identified in Paragraph 12 of the Decision Letter. He noted that on any view there was a shortfall in the 5 year supply of deliverable housing sites in Cheshire East. That is a conclusion that could be reached only by reference to the housing requirements to be found in the regional strategy document. In Paragraph 21 he refers expressly to the housing requirements identified in the Regional Strategy.
12. The issue that is turned to in Paragraph 22-25 is the prematurity point that was relied on by CEBC. The relevant policy emphasises that where a Local Plan is being prepared or is under review, permission might be refused on grounds of prematurity because the proposed scheme ought to be considered only in light of the new plan that is in the course of development. However, that is likely only to be so where the proposed development is " … so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy …". The SSCLG concluded in Paragraph 25 of the Decision Letter that the proposed development did not fall within this category. It is not suggested by CEBC that SSCLG was not entitled to reach that conclusion nor is that conclusion of itself challenged. Plainly that was a conclusion that was open to SSCLG having regard to the conclusion reached in Paragraph 18 of the Decision Letter that the shortfall in the 5 year supply of deliverable housing sites in Cheshire East equated to an estimated 5 year shortfall of between 2000 to 2600 new dwellings.
13. The point being made in the sentence that follows is that the only basis on which a judgment could be reached concerning size and cumulative effect was on the basis of the material that was available concerning housing requirements. The final sentence of Paragraph 25 is saying simply that if the developing Core Strategy had reached such a state of development that a district housing requirement had been identified that might have significantly impacted on the judgment to be made concerning the size of the development, or its cumulative effect but the absence of such material meant that what might otherwise have supported a prematurity argument was simply not available. Read as part of a whole the sentence that is objected to makes clear sense.
14. Once the Decision Letter is properly understood CEBC's case becomes untenable. The housing requirement identified in the Regional Strategy was plainly taken into account and it was that material that was relied on for the purpose of reaching a conclusion as to whether the Scheme was so substantial, or its cumulative effect so significant that granting permission could predetermine decisions about the scale, location or phasing of new development which are being addressed in the developing Core Strategy that was the basis of CEBC's prematurity argument. A comparison of the size of the Scheme against the estimated 5 year shortfall of between 2000 to 2600 new dwellings was plainly an appropriate way in which to assess this issue.
15. In those circumstances, in my judgment it is simply not correct to suggest as does CEBC that the policy contained in paragraphs 17-19 of Planning System – General Principles 2005 has been misunderstood or misapplied. It is equally incorrect to suggest that SSCLG has given inadequate reasons for the conclusions reached in the final sentence of paragraph 25 of the Decision Letter. The conclusion was of itself entirely correct as was the conclusion expressed earlier in the Decision Letter concerning the effect of the Regional Strategy.

Disposal

16. The claim is dismissed.

Costs

17. RES does not seek costs. It was agreed between the parties at the conclusion of the hearing before me that in the event that the claim was dismissed costs should follow the event. Accordingly, CEBC must pay SSCLG's costs of and occasioned by this claim to be assessed on a standard basis at a detailed assessment unless previously agreed.