QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT MANCHESTER
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
IN THE MATTER OF AN APPLICATION UNDER SECTION 288 OF THE TOWN AND COUNTRY PLANNING ACT 1990
AND IN THE MATTER OF AN APPLICATION FOR PERMISSION TO CLAIM JUDICIAL REVIEW
|HUNSTON PROPERTIES LTD||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|ST ALBANS CITY AND DISTRICT COUNCIL||Defendants|
Mr. Stephen Whale (instructed by the Treasury Solicitor) for the First Defendant
Mr. Matthew Reed (instructed by Head of Legal Democratic and Regulatory Services, St Albans City and District Council) for the Second Defendant
Hearing dates: 1 and 2 August 2013
Crown Copyright ©
HH Judge Pelling QC:
i) An application by the Claimant ("HPL") under s.288 of the Town and Country Planning Act 1990 ("TCPA") for an order quashing a decision of a planning inspector ("the Inspector") appointed by the First Defendant ("SoS") by which the Inspector dismissed an appeal under s.78 TCPA by HPL against a refusal of the Second Defendant ("the Council") to grant outline planning permission for the construction of 116 dwellings, a 72 bed care home, a new road access, two tennis courts and open space ('The Scheme") at a site at consisting of land to the rear of 112-156B Harpenden Road, Sewell Park, St Albans ('the Site"); and
ii) The rolled up hearing of an application for permission and (if permission be granted) a claim for judicial review of a decision by the Inspector by which she ordered HPL to pay 20% of the Council's costs of the planning inquiry held by the Inspector ("the Inquiry") that led to the dismissal of HPL's appeal.
The hearing took place in Manchester on the 1 and 2 August 2013 pursuant to an order of Deputy Master Knapman by which she had directed transfer of the proceedings to Manchester and that the judicial review proceedings should proceed as a rolled up hearing. At the conclusion of the hearing the parties asked me to delay handing down judgment until the beginning of September in order to facilitate the holiday arrangements of the parties and their advisors. I agreed to this proposal. I also agreed to determine all post judgment issues in writing providing all parties signified their consent to this course prior to the date fixed for the hand down of this judgment.
" - in the case of the proposed housing development, whether the harm by reason of inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development "
"The level of provision required in RSS policy H1 was justified by the specific circumstances of the District, having regard to previous Government advice in Planning Policy Guidance and Planning Policy Statements and did not simply apply Government population and household projection figures. RSS policy H1 requirement took account of the constraints to development in the District striking a balance of the social, economic and environmental objectives with the aim of achieving sustainable development. The balance was evidence based, consulted upon, subject to a sustainability appraisal, justified and publically examined. In reaching the housing requirement, the supporting text made it clear that full provision is not made for all needs irrespective of constraint."
"There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
• an economic role contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;
• a social role supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community's needs and support its health, social and cultural well-being; and
• an environmental role contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy."
The need to focus on all of these requirements rather than one at the expense of another is emphasised by Paragraph 8 and at Paragraph 10 the need to take local circumstances into account is emphasised. The presumption in favour of sustainable development is described at Paragraph 14 as a "golden thread" which in relation to decision-making is said to mean:
"For decision-making this means:FN10approving development proposals that accord with the development plan without delay; and where the development plan is absent, silent or relevant policies are out of date, granting permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted.FN9"
Footnotes 9 and 10 state:
"9. For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion. [Emphasis supplied]
10. Unless material considerations indicate otherwise."
The housing specific element of the NPPF is at Paragraph 47, which is to the following effect:
"47. To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
- identify and update annually a supply of specific deliverableFN11 sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
- identify a supply of specific, developableFN12 sites or broad locations for growth, for years 610 and, where possible, for years 1115;
- for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and
- set out their own approach to housing density to reflect local circumstances."
Footnotes 11 and 12 state:
"11. To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.
12. To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available and could be viably developed at the point envisaged."
In relation to Green Belt and its relationship with development, Paragraphs 87 and 88 state:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances."
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
HPL's Case Before The Inspector
The Decision Letter
" local planning authorities to meet the full objectively assessed needs for market and affordable housing as far as is consistent with the other policies in the Framework. Sites should be identified and updated annually to provide a supply of specific and deliverable sites sufficient to provide five years worth of housing against their housing requirements. There should be a 5% additional buffer to ensure choice and competition although, if there is a persistent under delivery of housing, the buffer should be increased to 20%."
She then noticed the planning history culminating in the revocation of the EEP Policy to which I have referred in summary above in these terms:
"23. The District Local Plan Review 1994 had a housing target in policy 3 for the delivery of 480 dwellings per annum between 1986 and 2001. The LP requirement was superseded from 2001 by the Hertfordshire Structure Plan Review 1991-2011 adopted in 1998 (SP). SP policy 9 had a housing target for St Albans District of 315 dwellings per year. The SP was superseded by the RSS 2008 that in policy H1 had a housing target for St Albans District of 360 dwellings per year between April 2000 and March 2021. Since the revocation of the RSS and in the absence of a more up to date development plan there is a policy vacuum in terms of the housing delivery target."
She then recorded the fact that the absence of an up to date or emerging plan and definitive housing development delivery requirement weighed significantly in favour of HPL. The Inspector then summarized the effect of Paragraph 14 of the NPPF before turning to the resolution passed by the Council's Cabinet on 17 January 2013, which she described in these terms:
"26. The Council meeting of 17 January 2013 resolved that the RSS target of 360 dwellings per annum from 2001 to 2021 was the most appropriate interim housing target/requirement for housing land supply purposes. This figure was found sound by the Panel which considered the RSS on an evidence base that included significantly higher populations and household projections. The level of provision required in RSS policy H1 was justified by the specific circumstances of the District, having regard to previous Government advice in Planning Policy Guidance and Planning Policy Statements and did not simply apply Government population and household projection figures. RSS policy H1 requirement took account of the constraints to development in the District striking a balance of the social, economic and environmental objectives with the aim of achieving sustainable development. The balance was evidence based, consulted upon, subject to a sustainability appraisal, justified and publically examined. In reaching the housing requirement, the supporting text made it clear that full provision is not made for all needs irrespective of constraint."
i) That the 360 figure adopted by the Cabinet was derived from the old and revoked EEP;
ii) The figure could only be regarded as "sound" applying the policies contained in or which applied to the EEP;
iii) Policy H1 led to a requirement figure that took account of and therefore was net of the effect of various constraints as required by Policy H1 of the Regional Spatial Strategy; and
iv) In consequence, the EEP housing requirement figure was one where " full provision is not made for all needs irrespective of constraint".
The Claimant maintains that this is a critical conclusion because it submits that in consequence of adopting the 360 figure the Inspector simply failed to give effect to the process that is mandated by the NPPF for the determination of planning applications where there is no, or no emerging, strategic local plan. The Inspector appears to acknowledge that this point is at least potentially correct in Paragraph 28 of the DL where she says: "The DCLG 2008 household projections are the most up to date figures and will be used in the Green Belt and housing need studies to be undertaken; to do otherwise would start from a position of constraint." The DCLG figures are those relied on by the Claimant and are set out in summary in Paragraph 27 of the DL, which states:
"27. From the Department for Communities and Local Government (DCLG) projections to 2028 there would be 688 new households per year in the District. The Appellant considers that the need for dwellings should be 5% higher to take account of vacancies, second homes and the like. This would make an annual requirement for 720 units to which the Appellant considers an additional 20% should be added having regard to paragraph 47 of the Framework. The overall requirement would therefore be for 864 dwellings that would reduce to 756 units if a 5% buffer were applied."
"29. The RSS figure provided housing requirements for the period to 2021 and took account of the severe constraints in the District. It provides the only figure that has been scrutinised through the independent examination process. Government policy aims for localism rather than top down set targets but there was nothing to indicate that the constraints identified in the RSS process are reduced because the RSS is no longer extant or that any unmet need in St Albans District was distributed into other Districts in RSS policy H1. Paragraph 5.5 of the supporting text to RSS policy H1 advises that the overall regional identified provision falls significantly short of what is needed based on evidence about housing pressure, affordability and household projections."
30. At this time and in the absence of an identified need that takes account of any constraints to development and acknowledging the age of the RSS data, and the fact that the RSS has now been revoked, I consider it is reasonable that the annual housing target should have regard to constraints in the district and be that which takes them into account. As resolved by the Council on 17 January 2013, provision should be made for a minimum of 360 residential units per annum on specific deliverable sites."
This led inexorably to the conclusion that the appeal ought to be dismissed notwithstanding various other factors that were relied on in support of the application for as the Inspector put it in Paragraph 71 of the DL:
"71. Overall, the policy vacuum is afforded significant weight, the affordable housing provision great weight, the improvements to the Ancient Briton junction some weight and limited weight to the proposed tennis courts that would be transferred to SAGS. However, in the absence of an identified need for the release of a greenfield Green Belt site, the substantial harm to the Green Belt and significant harm to the character and appearance of the countryside are not clearly outweighed by the other material considerations either individually or as a whole. Therefore the very special circumstances necessary to justify the inappropriate residential development in the Green Belt do not exist. The development would be contrary to LP policies 1 and 69(i) as well as Government policy in the Framework."
Relevant Legal Principles
i) The NPPF " is a material consideration in planning decisions " see NPPF, Paragraph 2;
ii) The interpretation of planning policy is a matter of law but the application of planning policy is a matter of planning judgment see Tesco Stores v. Dundee  PTSR 983;
iii) A s.288 challenge is an opportunity to correct a failure to take into account material considerations or the taking into account of immaterial considerations or errors of law, not an opportunity to challenge an outcome on the planning merits of an appeal other than on rationality grounds see R (Newsmith Stainless Steel) v. SSETR  EWHC 74 (Admin) at Paragraph 6;
iv) In the absence of a rationality challenge, the weight to be given to a material consideration is a matter for the Inspector not the Court see Tesco Stores v. SSE  1 WLR 759 per Lord Hoffmann at 780;
v) Points not made to an inspector will generally not be permitted to be raised on a s.288 challenge see Humphris v. SSCLG  EWHC 1237 (Admin) per Ouseley J at . The position is not an absolute one however. Ouseley J was not attempting in that paragraph to set out comprehensively the circumstances in which a point of law not deployed before an inspector could not be deployed on a s.288 challenge. He was prepared to recognise that a " pure point of law " was one that might be permitted whereas points which might require an examination of fact or a judgment as to fact and degree would usually not be permitted to be raised for the first time on a s.288 challenge;
vi) Decision letters are to be read in a straightforward manner see South Bucks CC v. Porter (No.2)  1 WLR 1953 per Lord Brown at  and thus without excessive legalism;
vii) The general rule is that if an Inspector fails to take account of a material consideration or makes an error of law then the decision will be quashed unless the point would not have made a difference to the outcome or there was not a real possibility that it would have made a difference see Bolton MBC v. SSE (1991) 61 P & CR 343. This point does not in the end arise in this case for it is common ground that if I conclude that HPL is correct in its submission that the Inspector misconstrued and misapplied the NPPF then the proper course is to quash the decision.
The Position in Principle
Whilst it is true to say that the summary of HPL's case at Paragraph 3(b) of its written closing submissions referred to a failure on the part of the Council to provide for a five year supply of deliverable housing sites, that of itself was meaningless without regard being had to the full objectively assessed needs figure since it is impossible to arrive at a conclusion about the first without having first ascertained the second. Not surprisingly therefore, at Paragraph 29 and following there are set out lengthy submissions under the heading "Assessing Full Housing Needs". At Paragraph 31 there is a clear submission to the effect that the best evidence of actual need is to be found in the projections published by the DCLG. The materiality of the EEP is considered at Paragraph 37 and following. Although the language used is to an extent more florid than that used in the submissions in these proceedings, the same essential points are made. This part of the submissions concludes with a submission that:
"If you make a decision based on an annual housing target of 360 dwellings, I unhesitatingly submit, therefore, that you would be falling into legal error by reason of taking into account a wholly immaterial consideration. pending the outcome of the Plan-making process, the only interim housing needs figure that one can reasonably work from, as the Council is now doing, is based on the most up to date projections from the Department for Communities and Local Government."
The Cabinet Decision
The Judicial Review Claim
"A11. An award of costs does not necessarily follow the outcome of the appeal, as in litigation in the Courts. This is a well-established principle of the costs regime and remains so. An unsuccessful appellant is not expected to reimburse the planning authority for the costs incurred in defending the appeal. Equally, the costs of a successful appellant are not borne by the planning authority as a matter of course.
A12. Costs will normally be awarded where the following conditions have been met:
- a party has made a timely application for an award of costs
- the party against whom the award is sought has acted unreasonably and
- the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeal process either the whole of the expense because it should not have been necessary for the matter to be determined by the Secretary of State or appointed Inspector, or part of the expense because of the manner in which a party has behaved in the process."
A19. Some cases do not justify a full award of costs for example, where the appeal is one of several joint appeals, or where the application for costs only relates to one ground of refusal, or only relates to the attendance of particular witnesses. In these circumstances, a partial award may be made. The partial award may also be limited to a part of the appeal process. Where an unnecessary adjournment is caused by the unreasonable conduct of one of the parties, the award of costs would be limited to the expense caused by the adjournment, for example, the abortive costs of attending the event on the day of the adjournment.
A20. A partial award may be made where an application for a full award is being allowed in part or where a partial award is applied for in specific terms. An application for a partial award may be allowed in the terms of the application, refused, or allowed in part (that is, a smaller partial award is made). The expense of making an application for a partial award of costs is recoverable where the application is allowed. Where the application is for a full award and the application is allowed in part, or an application for a partial award is allowed in part, a proportion of the expense of making the application will be recoverable accordingly.
B13. The right of appeal should be exercised in a reasonable manner. It should be used as a last resort, with the appellant being ready to proceed with the appeal once it is submitted. An appellant is at risk of an award of costs being made against them if, on the basis of the available evidence, the appeal or ground of appeal plainly had no reasonable prospect of succeeding on the basis of the application submitted to the planning authority."
This may occur when:
- the proposal is clearly contrary to or flies in the face of national planning policy and no, or very limited, other material considerations are advanced with inadequate supporting evidence [see bullet point below for proposed development in the Green Belt]
- development is proposed which is obviously not in accordance with the statutory development plan and no, or very limited, other material considerations are advanced with inadequate supporting evidence to justify determining otherwise
- the appeal follows a recent appeal decision in respect of the same, or very similar, development on the same, or substantially the same, site where the Secretary of State or Inspector has decided that the proposal is unacceptable and circumstances have not materially changed in the intervening period
- the appellant is seeking planning permission for development in the Green Belt, which would be inappropriate according to PPG2: Green Belts. In this situation it will not be sufficient for the appellant to rely on a genuine belief that there are very special circumstances to justify overriding the Green Belt presumption stated in PPG2. It is for the appellant to show why permission should be granted by demonstrating what the very special circumstances are, and providing evidence to justify an exception to general Green Belt policy
- the appellant has refused to enter into or provide a planning obligation or fails to provide an obligation in appropriate terms, which the Secretary of State or Inspector considers is clearly necessary to make the proposed development acceptable."