England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 February 2014

Mr Justice Collins :

1. The claimant seeks by this claim to quash the decision of the defendant of 14 May 2013 granting outline planning permission to the third defendant to build up to 300 dwellings on a site of about 15 hectares to the east of Barrow upon Soar. The site is poor quality agricultural land and is a Greenfield site. An application made in March 2009 had been refused by the second defendant (CBC). A fresh application was made in July 2010 and was again refused by CBC on 9 December 2011. The third defendant appealed to the defendant. Initially, it was agreed that the appeal should be dealt with on paper but the first defendant decided in June 2012 that he should recover it and decide the appeal himself following a public inquiry. The inquiry was held over 7 days between October 2012 and January 2013. On 13 March 2013 the inspector recommended that permission should be granted subject to a number of conditions. This recommendation was accepted by the first defendant.
2. CBC's officers had recommended that permission be granted but the committee refused it giving one reason only which related to increased dangers to road users at a junction which would be affected by increased traffic movements. There was no objection to the principle of housing development nor was it suggested that such development could not for any reason relating to the services available at the site come to fruition. Nor did CBC suggest that the increase in population of the village resulting from the development would put an unacceptable strain on available resources. Thus at the hearing before the inspector the main issue to which the bulk of his report was directed related to the highway grounds.
3. Two grounds are relied on by the claimant. First, it is said that the evidence before the inspector was such that he could not reasonably have decided that the development had realistic prospects of being delivered within a reasonable time. In the claim form and his skeleton argument, Mr Pugh-Smith had submitted that in order to comply with the NPPF which, for reasons I will come to, was applicable, the development had to be shown to be deliverable within 5 years. He accepted in argument that this did not mean it must be fully completed within 5 years, but there must be a realistic prospect that housing could be delivered on the site within that period. It was further submitted that the inspector had placed the burden on the claimant to show it was not deliverable whereas it was for the third defendant to establish that it was.
4. The second ground relies on the decision by CBC to approve a new Core Strategy which, if in due course approved following the necessary public involvement, would provide that housing development in what were described as Service Centres (Barrow upon Soar being one such) should be limited to 200 dwellings altogether. This was formally agreed by CBC on 14 April 2013. This, it was submitted, required the defendant either to reopen the inquiry or at least to seek further representations from those who had been concerned at the inquiry, including the claimant. The failure by the defendant to do so constituted irrationality and/or the failure to take account of a material consideration.
5. The development plans in force at the time of the inquiry were the East Midlands Regional Plan (RSS) and saved policies of the Charnwood Local Plan 1991-2006. The RSS was due to be terminated following government policy in relation to all existing RSS. It was to be replaced by a Core Strategy, but this had not progressed since 2008, albeit in September 2012 a committee of the council had expressed approval of what was to become the new housing development policy. While the existing plans were relevant and regard had to be had to them, they were out of date. Thus Paragraph 14 of the NPPF applied. This, so far as material, provides:-

"At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development which should be seen as a golden thread running through both plan-making and decision-taking …

For decision-taking this means:- …

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 the Framework taken as a whole; or

Specific policies in the Framework indicate development should be restricted."

6. What is to be regarded as sustainable development requires, according to Paragraph 6 of the NPPF, consideration of the policies contained in Paragraphs 18 to 219 taken as a whole. In Paragraph 12, it is made clear that the NPPF cannot and does not change the statutory status of the development plan as the starting point for decision making. Development which accords with an up-to-date plan should be approved and development that conflicts with such a plan should be refused unless material considerations indicate otherwise.
7. Housing is dealt with in Chapter 6 of the NPPF starting with Paragraph 47. This, so far as material, requires local planning authorities to:-

"Identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …

Identify a supply of specific developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15 …"

Footnotes to these requirements define what is meant by deliverable and developable. Deliverable means:-

"… 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".

To be considered developable, it is said:-

"… 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."

8. Paragraph 49 provides:-

"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

CBC was unable to demonstrate a five year supply. Thus the presumption in favour of sustainable development applied to the application in this case.

9. Reliance is placed by the claimant on Paragraph 173 of the NPPF, which is headed 'Ensuring viability and deliverability'. This is a general paragraph in the Plan-making section and not a consideration for all proposed developments. It provides:-

"173. Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision-taking. Plans should be deliverable. Therefore, the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened. To ensure viability, the costs of any requirements likely to be applied to development, such as requirements for affordable housing, standards, infrastructure contributions or other requirements should, when taking account of the normal cost of development and mitigation, provide competitive returns to a willing land owner and willing developer to enable the development to be deliverable."

10. Mr Pugh-Smith prefaced his skeleton argument with the assertion that this claim raised 'an interesting point not so far addressed by the Courts as to the meaning of the term "deliverability" in the NPPF'. That is denied by counsel for both the first defendant and the third defendant because, deliverability is not the same as sustainability, nor does the NPPF on its true construction indicate that it is, in the context of housing applications. Paragraph 47 is concerned with the identification of sites which will maintain an annual pool to provide for five years worth of housing against the authority's housing requirements. But this does not preclude the grant of permission for development on a site which is not included in those identified. There is a general requirement to 'boost significantly the supply of housing'. Provided that the location and characteristics of the site do not indicate that the development has adverse impacts which mean it is not sustainable, development can properly be approved. Paragraph 173 makes the obvious point that planning permissions should not be granted unless the development in question is viable. The need for developments to be deliverable is included in Paragraph 173, since there is a general requirement that planning permissions be implemented within a reasonable time, often five years. Even if the meaning of deliverable in the footnote to Paragraph 47 can be generally imported into Paragraph 173, there is no requirement that in order to be regarded as sustainable the development must be completed within 5 years. At most, it requires a reasonable time which can properly identified by conditions. Furthermore, since the objective of the relevant bullet point in Paragraph 47 is the identification of particular sites which can produce a five year supply, the precise definition of deliverable in its limitation to a realistic prospect of delivery within five years is not material in relation to sites which are not within the annual five year requirement.
11. The claimant raised a number of matters which it submitted should lead to refusal of permission. These included in addition to the highway grounds in which it supported CBC, flood risk, problems of public transport and for pedestrians and unacceptable pressure on the local health centre and schools. The only one which is now raised relates to sewage disposal from the proposed development. The existing sewage disposal network, including the sewage treatment works would have to be improved and upgraded. The claimant's case in this regard is summarised in Paragraph 128 of the inspector's report as follows:-

"128. The existing requirements of the Environment Agency's suggested condition, the lack of discussions with Severn Trent Water and the configuration of the existing drainage diminish confidence in the occupation of any dwellings on the site within 5 years. This is highlighted by the fact that the appellant has not had discussions with Severn Trent Water and the knowledge that the sewer is at capacity due to gradient and already discharges at times of peak flow. The opportunities for redirecting the flow away from this catchment are limited and the construction of a new sewer would require a tunnel under the railway and the crossing of third party land, possibly with a need to upgrade a pumping station. There is therefore no certainty that any houses on the site could be occupied within 5 years."

12. It is important to identify the extent of the evidence placed before the inspector on the sewage issue. There was evidence given by some local residents that the existing sewage system could not always cope. The claimant's expert witness, Mr Cage, stated under the heading 'Total Drainage Issues' that the sewer was already 'suffering capacity issues'. He went on (Paragraph 4.4):-

"In order to address this position the developer would need to increase the size of the pipe network in the area resulting in a new pipe being required to be constructed under the East Coast (sic) Mainline. This would take a considerable amount of time to negotiate and agree with Network rail. Third party land would also be required for the improvement or the developer would have to requisition Severn Trent Water to provide a suitable off site connection. This again will take a considerable amount of time to organise and agree with the various parties severely delaying the delivery of any houses in the scheme."

13. The Environment Agency had written to CBC on 26 April 2010 when consulted about the earlier application which was refused. It stated in relation to sewage as follows:-

"Condition

No development approved by this permission shall be commenced until a scheme for the improvement and extension of the existing system and improvements to the sewage treatment works has been submitted to and approved in writing by the local planning authority. The scheme shall be implemented as approved. No occupation of dwellings approved by this permission shall occur until the scheme for improvement and extension of the existing sewerage system and sewage treatment works has been completed.

Reasons

The sewage treatment works flow is all pumped and the altered discharge is likely to cause contravention of the discharge consent if an increase in discharge loading is permitted leading to deterioration in the water environment before improvements are made.

Note:

Severn Trent Water will need to confirm that the sewage treatment works has enough capacity in the consented dry weather flow to accept all the foul flow from this development.

It must also be demonstrated by Severn Trent water that the increase in foul waste water entering the sewerage system will not cause any deterioration in the operation of any combined sewer overflows on the system either upstream or downstream of the development. There must be no increase in the spill frequency or volume of the combined sewer overflows on the sewerage network and the additional flow must not create the need for any new combined sewer overflows."

When consulted in relation to the application which this claim concerns, it sent a letter of 2 March 2011. In it, it suggested a similar condition and that Severn Trent Water should be consulted and be requested to demonstrate that the sewerage and sewage disposal systems serving the development had sufficient capacity to accommodate the additional flows generated by the development without causing pollution.

14. No approaches have been made to Severn Trent Water or to National Rail by CBC or the third defendant. The third defendant's expert, Mr Rassool had not dealt with this issue explicitly in his proof, but in his oral evidence he said, according to notes made by counsel at the time, that he had worked with Severn Trent on sewage improvement schemes. Mr Cage's view on what was needed as a solution was a huge assumption. From his experience, as soon as a request for a connection was made, Severn Trent had to do a capacity study and an expensive connection under the railway was very much a matter of last resort. Use could be made of capacity upstream with diversion of flows.
15. The claimant sought to put in further evidence on this issue. It amounted in the main to comment but in addition there were additional reasons given to support the claimant's case on this issue. So far as the comment was concerned, I did not exclude it since Mr Pugh-Smith adopted it as part of his submissions. The additional evidence was not admissible.
16. The inspector dealt with the sewage issue in Paragraphs 320 to 323 of his report. These I should cite. They read:-

"320. Bearing all of the above in mind and the acknowledged inability of the Council to demonstrate a five year supply of deliverable housing sites, together with its acknowledgment that policies ST/2, CT/1 and CT/2 may thereby not be considered up-to-date, and my conclusion that in any event the proposed development displays a very substantial degree of accordance with the development plan as a whole, I have no doubt that the presumption in favour of sustainable development is, in principle, engaged.

321. The Parish Council submitted that the practical difficulties associated with bringing the site into development would inhibit its full development within a five year period, but that approach is in my view a misconception as to the relevant approach to land availability as conceived by the Framework at paragraph 47. To enter the five year land supply an unallocated site such as this must be granted planning permission, not necessarily full permission, with a realistic prospect that housing will be delivered on the site within five years. There is no clear evidence in this case that the scheme would or could not be delivered over a five year period. There is no evidence to suggest that it is not viable, or that there is no longer a demand for the types of units (primarily family housing) proposed. For practical reasons the build-out of a site such as this should and would be phased, but that is a sequence of events, not in this case a means of preventing development prior to specified dates.

322. There would of course be practical matters to address, conditions precedent to discharge and consents to be gained before development could commence, but that is by no means unusual for a Greenfield development on this scale. There is nothing to suggest that an experienced developer, with the surety of an outline planning permission, would not invest heavily and with alacrity in the necessary up-front efforts to bring a site such as this into development. It is in no way dependent on a significant publicly funded infrastructure programme that might have to be implemented in advance. Even though other agencies such as Severn Trent Water and the highway authority may be involved in various ways they have statutory obligations in any event and the major financial resources needed would be in the control of the developer, to be deployed through other agencies where necessary.

323. It cannot of course be guaranteed that all the dwellings would be built and occupied within five years but there is, in my view, a realistic prospect of substantial delivery, thereby facilitating the availability of needed houses as the Framework intends. At this juncture, there is no cogent evidence that would significantly belie the appellant's intention or ability to secure substantial delivery within an appropriate timescale. I have no reason to doubt that, building on the work undertaken so far, vigorous concerted action by an experienced house builder would bring the development into being within a realistic timescale. Approval in principle is the essential catalyst to the necessary action on a site such as this. Little weight should, in my view, therefore be placed on the Parish Council's submissions in this respect."

17. These observations reflected the five year requirement with which I have already dealt and the realistic prospect test is accepted by Mr Pugh-Smith. What has been granted is an outline permission to which conditions have been attached. Condition 9 provides:-

"No development shall commence until drainage plans for the disposal of foul sewage have been submitted to and approved in writing by the local planning authority. No dwelling, in any phase of construction, shall be occupied until all the works necessary in respect of that phase have been implemented in accordance with the approved details."

Condition 2 requires application for approval of reserved matters (namely appearance, landscaping, layout and scale) to be made not later than three years from the date of permission. Condition 3 requires the development to commence not later than two years from the date of approval of the last of the reserved matters. Thus if Condition 9 cannot be met within five years (or a little more if the CBC took a long time to approve the reserved matters) the permission would lapse.

18. My attention was drawn to Circular 11/95 which deals with the use of conditions in planning permissions. Conditions which depend on others' actions are dealt with in Paragraphs 38 to 41. Paragraph 40 reads:-

"It is the policy of the Secretaries of State that such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed within the time-limit imposed by the permission."

This ought, Mr Pugh-Smith suggested, to have precluded the inspector from adopting the approach that he did having regard to the evidence. However, by letter of 25 November 2002, the Office of the Deputy Prime Minister notified all chief planning officers that Paragraph 40 should be amended as follows:-

"It is the policy of the Secretary of State that such a condition may be imposed on a planning permission. However, when there are no prospects at all of the action in question being performed within the time-limit imposed by the condition, negative conditions should not be imposed. In other words, when the interested third party has said that they have no intention of carrying out the action or allowing it to be carried out, conditions prohibiting development until this specified action has been taken by the third party should not be imposed."

19. This amendment has not been placed into any up-date of the Circular and is not mentioned in the Planning Encyclopaedia. Mr Whale took specific instructions and assured me that the amendment referred to in the letter is still in force. It follows that no point can be made by Mr Pugh-Smith on the Circular. The imposition of Condition 9 was entirely proper.
20. Mr Pugh-Smith submitted that in Paragraph 323 the inspector wrongly transposed the burden of proof from the third defendant to the claimant. It is of course for an applicant to demonstrate that permission should be granted, but I am far from persuaded that it is necessarily appropriate to talk in terms of burden of proof. However, it is clear that the inspector took the view, as was made clear in Paragraph 322 that, notwithstanding the absence of positive evidence to deal with the need to ensure that the sewage system could cope, the third defendant had made out its case. It was, he said, an experienced developer which had the necessary financial resources to deal with the expense involved in any upgrading. Severn Trent had, as was submitted on the third defendant's behalf, an obligation to connect a new development to the sewage system. Thus it may well boil down to a question of expense.
21. Mr Pugh-Smith submits that the inspector's decision was in this respect irrational. At the very least the third defendant should have taken steps to see whether the sewage system could be upgraded and whether there was a need to engage Network Rail. It was not, he submitted, permissible to make assumptions which could turn out not to be satisfactorily based. But it seems to me that the inspector was entitled to approach the issue as he did in Paragraph 321 by granting an outline permission subject to conditions which would ensure that any development must be put into effect within a reasonable time, namely five years or so. There is nothing irrational in that approach.
22. In Paragraph 338 the inspector concluded as follows:-

"338. While I am bound to report that there are harmful aspects to this development to which weight should be accorded, these must be weighed against the very substantial contribution to housing needs that the site is capable of providing in the context of an acknowledged shortage of suitable land and the inherent sustainability of the location. Those aspects of the planning obligation which may be taken into account to mitigate the impact of the proposed development should also be accorded due weight. The presumption in favour of the sustainable development, bearing in mind the policies of the Framework as a whole and the development plan taken as a whole, should therefore be the decisive factor in this case."

Since the NPPF was in the circumstances a highly material consideration, the presumption in favour of sustainable development clearly pointed in favour of the grant of permission. On the inspector's findings, this was sustainable development. That conclusion was, as I have said, a proper one.

23. Accordingly, I am satisfied that Ground 1 is not established. The inspector was guilty of no error of law in his report.
24. The revocation of the RSS did not in itself make any material difference. However, it meant that the emerging Core Strategy might have had more relevance. The council's committee had in September 2012 agreed a policy which limited the need for more than 200 dwellings in the Service Centres such as Barrow upon Soar. The development in this case produced more than that number in one site. Nevertheless, as I have said, that in itself would not mean that if it constituted sustainable development it had to be refused. The claimant requested disclosure of the submissions made to the Secretary of State following the inspector's report. They in due course obtained a redacted copy. In Paragraph 5, this is said:-

"CBC considers that the appeal site is unsustainable and the scheme cannot be supported without major infrastructure improvements – particularly to provide an additional flood free link to the A6 and a new or upgraded health centre. The Council is also seeking to shift the emphasis for the provision of new housing away from "service centre settlements" like Barrow upon Soar and considers that the appeal proposal would lead to deterioration in the quality of life currently enjoyed by residents."

The first sentence is of doubtful accuracy, but the second recognises the approach of the CBC to the new Strategy.

25. Rule 17 of the Town and Country Planning (Inquiries Procedure)(England) Rules 2000 (2000 No.1624) deals with procedure after inquiry. Rule 17(5) requires the Secretary of State if he is minded to disagree with the inspector on any matter of fact or because he takes into consideration fresh evidence or new matters of fact to notify those persons who were entitled to appear at the inquiry and receive further representations or, if asked to do so, consider reopening the inquiry. That does not apply in this case since the Secretary of State did not disagree with the inspector's recommendation. Thus the Rules do not support the submission that there was in this case any obligation to seek further representations let alone a reopening of the inquiry.
26. In Paragraph 5 of the decision letter, this is said:-

"The Secretary of State does not consider that the revocation of the RS raises any matters that would require him to refer back to the parties for further representations prior to reaching his decision on this appeal, and he is satisfied that no interests have thereby been prejudiced. He has also had regard to the fact that the Council is progressing work on its Core Strategy. However, as that is at an early stage in its preparation, he gives it little weight."

27. The Secretary of State has recognised that independently of Rule 17 there is a need to seek further representations if it would not be fair to do otherwise. In this case, I have no doubt that the Secretary of State was entitled to decide as the decision letter indicates. There was nothing new in the Core Strategy proposals beyond what had been recommended by the Committee of the CBC in September 2012. This had been before the inspector. He and the Secretary of State were entitled to give it little weight and in any event it could not have meant that the development application should be refused, as I have indicated. It follows that Ground 2 must also fail.
28. This claim must therefore be dismissed.