QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
| THE QUEEN on the application of
MEVAGISSEY PARISH COUNCIL
|- and -
|- and -
MEVAGISSEY BAY VIEW LLP
The Defendant not appearing or being represented
Harriet Townsend (instructed by Stephens Scown LLP) for the Interested Party
Hearing date: 21 November 2013
Crown Copyright ©
Mr Justice Hickinbottom:
The Relevant Planning Policies
"115. Great weight should be given to conserving landscape and scenic beauty in… [AONBs], which have the highest status of protection in relation to landscape and scenic beauty….
116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:
- the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
- the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
- any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated."
"The conservation and enhancement of sites, areas, or interests, of recognised international and national importance for their landscape, nature conservation, archaeological or historic importance… should be given priority in the consideration of development proposals."
Paragraph 32 makes clear that AONBs fall within the definition of areas of recognised national or international significance.
"Within the [AONB]… priority will be given to the preservation and enhancement of natural beauty. Development will not be permitted that would conflict with this objective."
"Particular care will be taken to ensure that no development is permitted in or outside the AONB which would damage its natural beauty, character and social qualities or otherwise prejudice the achievement of the AONB purposes."
"In rural areas, exercising the duty to cooperate with neighbouring authorities, local planning authorities should be responsive to local circumstances and plan housing development to reflect local needs, particularly for affordable housing, including through rural exception sites where appropriate. Local planning authorities should in particular consider whether allowing some market housing would facilitate the provision of significant additional affordable housing to meet local needs".
"Local plans should set targets for affordable housing….
Local plans should set out the circumstances where affordable housing will be provided as an "exception" to normal policy in rural areas, providing the basis of resources to be targeted at areas of greatest need in locations easily accessible to a range of services and facilities…".
The accompanying notes, at paragraph 65, expand on that policy:
"… Policy 9 allows for both the provision of affordable housing as part of development on planned sites and 'exceptions' approach in villages.
Currently, the planning system is specifically providing for affordable housing in two main ways. First, through 'planned' sites, where a particular proportion of housing is to be 'affordable'. The proportion appropriate and the type of housing is determined through the local planning process. The second method has become known as the 'exceptions' approach. This is specifically aimed at rural communities, where sites within and on the edge of villages can, in certain circumstances, be granted planning permission for affordable housing on sites where housing for the open market would not be allowed."
"Planning permission will be granted for exception sites well-related to existing villages where the development will provide affordable homes that meet a clearly identified need for affordable housing in that specific community."
It goes on to say that the inclusion of market housing will not normally be supported, but the Council may be willing to negotiate a departure from existing policy on any such scheme, which satisfies a number of criteria including (i) the development meets a local need, and (ii) the inclusion of market housing is essential for the successful delivery of the development. The notes state:
"8.6.2 The justification for development on such sites can only be made on the basis of a pressing local need for affordable housing which cannot easily and expediently be met in other ways….
8.6.3 Rural exceptions should normally be limited to 100% affordable housing restricted for local needs in perpetuity. [Planning Policy Statement 3] clarifies that exceptions proposals may only include affordable housing. As such, any proposals for exception site development that include cross-subsidy from open market sales would represent a departure from national policy. However, the possibility of departure proposals exists and there may be circumstances within which the use of a departures approach may be justified."
8.6.4 The Council will, therefore, consider proposals to include an element of market housing…."
Planning Policy Statement 3 has been replaced by the NPPF, but this remains as local guidance, albeit in draft.
"Support provision of affordable housing in settlements such as… Mevagissey… provided that there is access to local services, identified local need and that by location and design this fully respects historic settlement pattern and local vernacular including locally characteristic materials and that this conserves and enhances natural beauty."
The Planning Application
"In conclusion, the [ASA] clearly shows that the application site provides the most acceptable exception site in Mevagissey to meet the identified need for affordable housing provision through a cross-subsidy development…".
"The applicants have submitted an [ASA] which considers 6 sites around Mevagissey and concludes that this application site provides the most acceptable exception site. However, it is considered that the assessment does not attach appropriate weight to the significant adverse impact the development would have on the protected landscape, and it is considered that there are alternative locations which would have significantly less impact on the AONB."
Having accepted the need for affordable housing in the parish, this reasoning was, as we shall see, crucial to the officer's analysis and to her ultimate conclusion to recommend refusal.
"It is therefore considered that the proposal in this prominent position on the coastline fails to conserve the landscape and scenic beauty of the AONB and South West Coastal Path, contrary to paragraphs 115 and 116 of the [NPPF] and saved Policy 2 of the Cornwall Structure Plan. The proposal also contradicts policy PD8 and guiding principle 9.3 contained in the AONB Management Plan 2011-2016 as it does not address landscape sensitivity or capacity or is compatible with the distinctive character of the location described by the landscape character assessment."
"123. The proposed development is a major application in a designated [AONB]. The NPPF states that planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest.
124. Whilst it is noted that the proposal would provide affordable housing to meet an identified need in Mevagissey, the circumstances are not considered to be exceptional as it is considered that there are alterative deliverable sites which would meet this need with a less harmful impact on the AONB. Therefore the selection and development of this site is not considered to be in the public interest.
125. It is therefore concluded that the adverse impact of this proposal in this prominent undeveloped coastal location in the AONB outweighs the provision of affordable housing and the application should therefore be refused."
"Refuse for the following reasons:
The proposed development by reason of its scale and location within a prominent sensitive coastal landscape would have an unacceptable impact on the landscape and scenic beauty of the [AONB]. The proposed development is thereby considered to be in conflict with paragraphs 115 and 166 of the [NPPF], saved Policy 2 of the Cornwall Structure Plan and the Cornwall AONB Management Plan 2011-2016 policy PD8 and guiding principle GP9.3."
- Impact of the proposal on coastal location of the [AONB]
- A cross-subsidy scheme providing 21 affordable dwellings and 10 open market houses
- Adverse impact on prominent undeveloped coastal location in the AONB outweighs the provision of affordable housing
"vii) there were no exceptional planning grounds to warrant approval of the application;
x) development could take place in an [AONB] provided there was justification;
xii) the development complied with the [NPPF]."
This debate did not apparently include any consideration of alternative sites: none is recorded in the minutes.
"The development would go some way to addressing the identified affordable housing need for the Parish. The development with the appropriate Planning Obligation would not put undue pressure on existing infrastructure in the area. The site was close to the edge of an existing settlement and was within an acceptable distance of many essential day to day services and facilities, and was on a public transport route meaning the site was considered to be a relatively sustainable location for housing development. On balance, through the imposition of planning conditions it was concluded that the provision of affordable housing would outweigh any impact on the [AONB]. The application was therefore considered to accord with saved Policies 1, 2, 3, 9, 10, 15, 16 and 28 of the Cornwall Structure Plan 2004, saved Policies 1, 2, 3, 6, 7, 13, 18, 37, 50, 74, 75, 79, 80, 110 and 114 of the Restormel Local Plan 2001, and sections 1, 2, 3, 6, 7, 10 and 11 of the National Planning Policy Framework 2012."
Again, it is to be noted that these reasons make no reference to the alternative sites point, so crucial in the analysis of the officer.
Ground 1: The Council made its decision on a materially incorrect construction of the relevant policies in relation to the AONB.
Ground 2: In breach of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No 2184, "the 2010 Order"), the Council failed to give a proper summary of their reasons for the grant of permission.
Ground 3: In breach of the Town & Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824, "the 2011 Regulations") (and European Directive 2011/92/EU ("the EIA Directive"), which the regulations implement), the Council failed to adopt an EIA screening opinion.
The Legal Principles
i) In a substantial planning application, as in this case, a planning authority usually delegates the substantive determination to a committee or sub-committee of council members ("the committee").
ii) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, the committee must have regard to the provisions of "the development plan", as well as "any other material consideration". "The development plan" for any area is defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans. Plans and policies which have not yet been adopted are still a material consideration, but their weight will be less and will be dependent upon (e.g.) the stage they have reached towards adoption. Section 38(6) provides that:"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."Section 38(6) therefore raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations.
iii) "Material considerations" in this context include statements of central government policy, since March 2012 set out mainly in the NPPF, which replaced many earlier policy documents.
iv) Where there is relevant guidance, the committee or other decision-maker may depart from it, but must give reasons for doing so.
v) The committee cannot have proper regard to relevant policies unless they understand those policies. They therefore have an obligation to proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. The committee must, in short, ask themselves the right questions, as objectively required by the policy. Where the committee have misunderstood or misapplied a policy, that may found a challenge to his decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at page 1065B, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86 at page 94 per Woolf J, and Tesco Stores Ltd v Dundee City Council  UKSC 13 at - per Lord Reed).
vi) Whilst they must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the committee, who are entitled to give a material consideration whatever weight, if any, they consider appropriate, subject only to their decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 at page 780F-G per Lord Hoffman).
vii) However, the relevant policy may properly include guidance as to the weight to be given to a particular factor. Where it does so, as I recently emphasised in Bayliss v The Secretary of State for Communities and Local Government  EWHC 1612 (Admin) at paragraph 3(v), weight is still a matter for the committee or other decision-maker; but they must take into account any policy guidance as to weight, which is itself a material consideration. In the usual way, the committee can depart from the guidance, and give the factor a different weight; but, if they do, they must give reasons for doing so.
viii) Although this may be supplemented by (e.g.) information provided at a meeting, as in this case, the committee usually act on the basis of information provided by a planning case officer in the form of a report. Again as in this case, such a report usually also includes a recommendation as to how the application should be dealt with. In approaching reports, it has to be borne in mind that they are addressed to a "knowledgeable readership" (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was; see also Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Pill LJ).
i) When planning permission is granted, only summary reasons are required. The duty to give summary reasons is not to be equated with either the obligation to give full reasons for refusing permission, or the obligation imposed on the Secretary of State (or inspector acting in his behalf) to give reasons when determining a planning appeal.
ii) However, the summary reasons must be sufficient to enable a member of the public with an interest in the lawfulness of the permission granted to understand the rationale of the decision, and to ascertain whether, in granting the permission, the decision-maker correctly interpreted relevant policies.
iii) Whether summary reasons given are adequate will depend on the circumstances of the particular case.
iv) An important circumstance will be whether a decision-making committee agree with the officer's report. Absent any indication to the contrary, it can usually be assumed that a committee who agree with an officer's recommendation also agree with that officer's reasoning, so that short summary reasons will be adequate. In particular, in those circumstances, the committee can be assumed to agree with the officer's analysis of relevant policies.
v) But, where the committee disagree with the officer's recommendation, it may not be so easy to assume that they have interpreted the relevant policies in the same way as the officer, particularly where a difference in interpretation might explain the difference in the conclusions they have reached. In any event, it must be evident from the summary reasons how and why the committee have rejected the officer's advice and thus come to the conclusion to which they have come. That can, of course, be done in any form.
vi) Therefore, whilst the standard of reasons does not, as a matter of law, change, in practice it is likely that summary reasons will have to be drafted with greater care where the committee disagree with the recommendation of the officer, to enable members of the public to understand the rationale of their decision, and to make it apparent that they have understood and properly applied relevant policies.
The Claimant's Grounds
Grounds 1 and 2
i) She did not seek to argue that the Planning Committee decided to depart from the guidance in paragraphs 115-116. She also conceded that, if the Committee had indeed misunderstood or misapplied the policy set out in paragraphs 115-116 of the NPPF, they erred in law and the grant of planning permission should be quashed. She further conceded that, as the Committee disagreed with the officer's recommendation, there had to be a rational and discernible basis for doing so. However, she contended, as properly reflected in the summary reasons, the Committee had that policy in mind, they correctly applied it and they had a rational and discernible basis for disagreeing with the officer.
ii) She submitted that there is nothing in the summary grounds to suggest that the Planning Committee members did not identify, approach and apply the policy correctly; and, in the last sentence of the Committee's summary reasons, it is positively stated that they considered the application accorded with the relevant national and local policies, which were listed and which included section 11 of the NPPF into which paragraphs 115-116 fall. The relevant policies were properly set out and analysed in the officer's report. The members had a "full and detailed debate" on the application, during which (Mrs Townsend submitted) contributors were clearly exercising their minds as to the correct policy questions, because one Council member said that "there were no exceptional planning grounds to warrant approval of the application", whilst in the view of another "the development complied with the [NPPF]". Given that their geographical area was comprised largely of the AONB, the members must have been well-used to determining applications on the basis of the policies relevant to the AONB.
iii) The "exceptional circumstances" required by paragraphs 115-116 of the NPPF were provided by the exceptional need for affordable housing in the parish. I was referred to the letter of the Developer's planning consultants (CSA Architects) dated 27 September 2012, sent to the Council after the officer's report had been made available and before the 3 October 2012 meeting. That letter refers to the "substantial, overwhelming and exceptional need for the delivery of affordable housing". Mrs Townsend submitted that that exceptional need, alone or when considered in all the circumstances of the case, provided the exceptional circumstances required for paragraphs 115-116.
iv) Given those exceptional circumstances, the officer identified the key issue, namely the balance between the adverse impact on the AONB and the need for provision of affordable housing. It was clear, Mrs Townsend submitted, that the Committee members gave the conservation of the AONB "great weight", as required by paragraph 115 of the NPPF, because the reasons confirm that the Committee considered the application accorded with section 11 of the NPPF into which paragraph 115 falls.
v) The Claimant's challenge is, in substance, a challenge to the merits of the Planning Committee's decision. The officer's conclusion, as set out in her reasons for refusing the application in paragraph 126 of her report (see paragraph 24 above) and her key issues document produced for the 3 October 2102 meeting (see paragraph 26 above), was that the adverse impact on the AONB outweighed the need affordable housing. The Committee had simply concluded the opposite, namely that the need for provision of affordable housing outweighed any impact on the AONB (see their reasons: paragraphs 29-30 above). That was a matter of planning judgment the Planning Committee were entitled to make, with which this court should not interfere.
i) there is no evidence, other than the assertion of the Developer's own planning consultants, that the need in Mevagissey is in itself "exceptional" in the sense of unusual or rare;
ii) in any event and far more potently, any assessment of "exceptional circumstances" must be done in respect of a specific proposed development; and
iii) neither the officer nor the Planning Committee in this case said that the need for affordable housing in Mevagissey amounted to "exceptional circumstances" for the purposes of paragraphs 115-116 of the NPPF.
Even if there were an exceptional need for affordable housing in an area, that would not necessarily equate to exceptional circumstances for a particular development, because there may be alternative sites that are more suitable because development there would result in less harm to the AONB landscape. In this case, that is exactly what the officer concluded (see paragraphs 20-22 above). She did not consider that the need for affordable housing amounted to exceptional circumstances for the proposed development, either looked at alone or with other factors, because there were other possible deliverable developments on other sites that would cause less damage to the AONB. That was, of course, a matter of planning judgment; but, given the terms of paragraphs 115-116 of the NPPF and the fact that ASA had a scoring matrix system which meant that adverse impact on the environment played very little part (see paragraph 16 above), that conclusion was clearly rational and one to which she was entitled to come.
"It is therefore concluded that the adverse impact of this proposal in this prominent undeveloped coastal location in the AONB outweighs the provision of affordable housing and the application should therefore be refused." (emphasis added).
That conclusion is expressly the culmination of her analysis. It was, however, transposed starkly into her key issues single-page without reference to that context. Looked at outside the context of her report seen as a whole, it could appear that she had concluded that the damage to the AONB outweighed the need for affordable housing on the basis of a simple balancing exercise. However, looked at in its proper context, it was clearly shorthand for the conclusion and reasons to which I have just alluded.
"On balance, through the imposition of planning conditions it was concluded that the provision of affordable housing would outweigh any impact on the [AONB]."
"The application was therefore considered to accord with saved Policies 1, 2, 3, 9, 10, 15, 16 and 28 of the Cornwall Structure Plan 2004, saved Policies 1, 2, 3, 6, 7, 13, 18, 37, 50, 74, 75, 79, 80, 110 and 114 of the Restormel Local Plan 2001, and sections 1, 2, 3, 6, 7, 10 and 11 of the National Planning Policy Framework 2012".
There are there listed sections of the NPPF which comprise all but half of that lengthy document, together with large sections of local policy documents. As Collins J emphasised in R (Tratt) v Horsham District Council  EWHC 1485 (Admin) at , article 31(1)(a)(ii) the 2010 Order (see paragraph 42 above), required, not simply a list of policies, but an indication of the matters to which those policies were relevant in the specific context of the application. The list in this case was, on that basis, in breach of that article. However, of greater importance is that, for the purposes of article 31(1)(a)(i), whilst the summary reasons do say that the Committee – or at least the eight who voted for the motion – considered that the application accorded with those policy provisions, it cannot be assumed or otherwise derived from that reference to broad swathes of policy that Committee members had regard to the specific requirements of paragraph 115-116. R (Macrae) v Herefordshire District Council  EWCA Civ 457, to which I was referred, is an example of a case where the simple listing of sections of relevant policy was insufficient to show that the planning decision-makers addressed the right issues under a specific policy. This, in my judgment, is clearly another. From the reference in this case to policy relied on, one simply cannot assume, without more, that the Council members had in mind the requirements of paragraphs 115-116, buried away in section 11.
i) there is no evidence that there was, even arguably, any such influence; and
ii) the 4 June 2013 screening opinion was adopted after the Council had conceded that the earlier decision to grant planning permission should be quashed, so that there was no possible incentive to adopt a screening opinion that might support upholding it; nor do I consider unconscious influence, suggested by Mr Goodman, to be realistic.