England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham
		27/11/14

Mr Justice Hickinbottom :

Introduction

1. This is an application under Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which the Claimant seeks to quash a decision dated 20 June 2014 of an inspector appointed by the First Defendant Secretary of State, Mr R Schofield BA (Hons) MA MRTPI ("the Inspector"), to dismiss an appeal against the decision of the Second Defendant local planning authority ("the Council") dated 28 January 2014 to refuse planning permission for a proposed development of eight dwellings on land to the rear of the Miners' Arms, Stoneyford Road, Sutton in Ashfield, Nottinghamshire ("the Site").
2. Before me, Iain Colville has appeared for the Claimant, and Mark Westmoreland Smith for the Secretary of State; and I thank them at the outset for their assistance.

The Legal and Policy Background

3. In relation to planning decisions, the following propositions, relevant to this claim, are well-established.

i) A planning decision-maker must take into account all material considerations (section 70 of the 1990 Act).

ii) However, the weight to be given to material considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate. That discretion is subject only to (a) express statutory provision (notably section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), referred to below) and guidance which might inform the exercise of the discretion, and (b) the decision not being irrational in the sense of Wednesbury unreasonable, i.e. a decision to which no person in the position of the decision-maker and on the evidence before him could reasonably come (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, anyone who challenges a planning decision on Wednesbury grounds, faces "a particularly daunting task" (Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 75 (Admin) at [8] per Sullivan J, as he then was).

iii) Because of the importance of consistency in public decision-making, previous planning decisions are capable of being material considerations because "like cases should be decided in a like manner" (North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137 at page 145 per Mann LJ). However:

"To state that like cases be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision of the previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give reasons for departure from it. These can on occasion be short, for example in the case of a disagreement on aesthetics. On other occasions they may have to be elaborate." (ibid: see also Dunster Properties Limited v First Secretary of State [2007] EWCA Civ 236 especially at [12], a more recent case adopting the same approach).

Thus, there may need to be an analysis of the relevance of an earlier decision, including if and how it differs from the case in hand; and, where appropriate, an explanation by the decision-maker as to why findings in that earlier decision are being departed from (R (Fox Strategic Land and Property Limited) v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198 at [33]-[35] per Pill LJ).

iv) An earlier planning decision may be relevant in other ways than for the purposes of consistency. For example, the cumulative effect of a development earlier permitted and the proposed development may be a relevant consideration.

v) "Material considerations" in this context also include statements of central government policy now set out in the National Planning Policy Framework ("the NPPF"). Any local guidance is also a material consideration.

vi) A decision-maker must interpret policy documents properly, the true interpretation of such policy being a matter of law for the court (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).

vii) Section 70(2) of the 1990 Act expressly provides that "the development plan" is a material consideration. The content of the development plan is defined in section 38 of the 2004 Act to include "development plan documents" for the relevant area. However, the development plan is not simply a material consideration, because section 38(6) of the 2004 Act gives it a particular status. It 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."

Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan; but that presumption is rebuttable by other material considerations.

viii) Where a new or revised plan is going through the statutory process required for its adoption, that emerging plan is also a material consideration. As ever, the weight to be given to it is a matter for the decision-maker; but paragraph 216 of the NPPF states:

"From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:

- the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

- the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

- the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given)."

ix) Paragraph 47 of the NPPF requires planning authorities to "identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their requirement with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land". Paragraph 49 provides that housing applications should be considered in the context of the general presumption in favour of sustainable development found in paragraph 14. However, for decision-making on planning applications, paragraph 14 provides that this means:

"… where the development plan is absent, silent, or the relevant policies are out of date, granting permission unless:

- any adverse impacts of so doing 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."

Therefore, if the authority cannot demonstrate a five year plus buffer supply of housing land, then that weighs in favour of a grant of permission. In particular, in those circumstances, (i) relevant housing policies are to be regarded as out-of-date, and hence of potentially restricted weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event.

x) An inspector's decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed: it must be read as a whole and in a practical and common sense way (Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J). Furthermore, as Cranston J recently emphasised in Arsenal Football Club plc v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin) at [34], an inspector is only required to deal with and give reasons in respect of the main issues in dispute before him, not every material consideration.

xi) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.

4. In respect of the development plan relevant in this case, Policy EV2 of the Ashfield Local Plan Review 2002 provides:

"In the countryside permission will only be granted for appropriate development. Development must be located and designed so as not to adversely affect the character of the countryside, in particular its openness.

Appropriate development comprises:

…

g) Infill development which does not have an adverse effect on the scale and character of the area."

The Factual Background

5. The Miners' Arms public house lies to the North-East of Stoneyford Road, Sutton in Ashfield, between two residential areas: Stanton Hill to the North, and Sutton in Ashfield to the South-East. It covers about a quarter of a hectare wrapping around the pub, and is currently grass land used for the stabling etc of horses. Close by is Quarrydale School.
6. On 7 March 2013, the Secretary of State granted planning permission on appeal for residential development of 230 dwellings on a site comprising two separate parcels of land, one directly abutting the Stanton Hill residential area to the North-North-East of the Site and the directly abutting the Sutton in Ashfield residential area to the East of the Site ("the Vere Avenue/St Andrews Street Site").
7. In the Inspector's Report for the Secretary of State in respect of that development, the author – a different inspector from this case – said (at paragraphs 132-3):

"132. Although the land is within the countryside, it is best described as urban fringe…. Because the two areas of housing are extensions to existing housing that would be set well away from the main roads, the development would not have a significant impact on the character of the landscape generally….

133. The access to the southern site would be effectively screened by hedgerows. These hedgerows would not screen any tall lighting columns that would at night be illuminated and that would have an urbanising effect. However, there is floodlighting at the neighbouring Quarrydale School and so the illumination and columns should be seen in that context. For that reason, I consider that they would not be harmful to the character and appearance of the area. The vehicular and pedestrian movement along the road would not be so significant as to harm the character of the area…. "

8. In accepting the recommendation of the inspector to grant the application, the Secretary of State agreed with that analysis and adopted it; and expressly found that the development could be accommodated in the area without undue effects on the character and appearance of the area (paragraphs 10-11 of his decision letter of 7 March 2013).
9. The permission granted was subject to an agreement under section 106 of the 1990 Act establishing recreation rights and public pathways in the countryside between the two parcels of land upon which housing was permitted ("the Blue Land"), over which the developer had control. The obligation including the establishment and maintenance of a specific recreation area. By a unilateral undertaking dated 20 November 2012, the Blue Land was to be transferred by to the Council. The latter parcel – the one attached to the residential area of Sutton in Ashfield – has access from Stoneyford Road, by way of a road running through the Blue Land. The development site was restricted to (i) the two parcels of land on which dwellings were to be built, (ii) the road through the Blue Land and (iii) a river bed running through the Blue Land in respect of which operations were also to be performed. It did not include the Blue Land; although, as I have described, the land was in the control of the developer and subject to the obligations in the section 106 Agreement and the unilateral undertaking.
10. The Blue Land abuts the South and East boundaries of the Site. The North boundary is to open countryside. The West boundary is Stoneyford Road, beyond which is open countryside.
11. On 22 November 2013, the Claimant applied for planning permission for a development of two blocks of four dwellings each on the Site. At that time, the Council could not show a five year supply of housing land and the local development plan (the Ashfield Local Plan) was out-of-date, and; and so there arose a presumption in favour of planning permission (see paragraph 3(ix) above).
12. The Council consulted on the application. Its Planning Policy Officer, Lisa Furness, prepared a written report dated 4 September 2013. She referred to the 2002 Ashfield Local Plan Review, which identified the area between Stanton Hill and Sutton in Ashfield as "being of particular importance with regard to acting as a green wedge between built-up area". She said:

"The proposal site clearly forms a crucial part of this wedge, more so given the potential erosion which will result if the recent planning approval is implemented at [the Vere Avenue/St Andrews Street Site]".

13. In conclusion, she stated:

"I have several concerns about the proposed scheme. If the dwellings are developed in isolation, the scheme would have an adverse effect [on] the character of the countryside. The result would be approximately 8 properties surrounded by open countryside, clearly not integrated with any existing urban development and would significantly impact on the open break between settlements.

Given that the District does not have a five year housing land supply, I would advise you to weigh up the benefits of the scheme. In this respect the NPPF sets out that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole or where specific NPPF policies indicate development should be refused."

That, clearly and accurately, set out the task for the planning decision-maker on the application.

14. On 28 January 2014, the Planning Officer to whom the decision was duly delegated refused the Claimant's application. In respect of the adverse effect of the proposal on the character of the countryside, he specifically repeated the second sentence of the first paragraph of Ms Furness' conclusion, quoted above (paragraph 13), as his own.

The Inspector's Decision

15. The Claimant appealed, and elected to have the appeal dealt with under the written representations procedure. The Inspector was duly appointed. The Claimant made his written representations, in which he maintained that the Site was in the urban fringe and it the proposed development would not cause harm to the character or appearance of the area. The focus of his representations was that, in effect, the decision in respect of the Vere Avenue/St Andrews Street Site should be replicated, because the sites and applications were essentially the same. The Council made no representations but submitted Ms Furness' report and the responses to the application it had received.
16. The Inspector dismissed the appeal by a decision letter dated 20 June 2014. His essential analysis was as follows.

i) The main issue in the appeal was the effect of the proposed development on the character and appearance of the area (paragraph 2).

ii) The Site and "the wooded undeveloped countryside surrounding it" were of "moderate condition" but "nonetheless provide an attractive open break between the built forms of Stanton Hill and Sutton in Ashfield" (paragraph 5).

iii) The Site is bordered by mature trees and hedges, which were to be retained. When in leaf, they would screen the Site reasonably well; but for much of the year the proposed development, particularly at the higher points, would be prominent through leafless trees and hedges. He continued (at paragraph 6):

"Consequently, it would appear as an uncharacteristic, isolated intrusion into the open countryside, poorly related to the built form of either Stanton Hill or Sutton in Ashfield. Development here would also result in a substantial intensification of activity on, and marked change of appearance to, the appeal site. Taken together, these factors mean that the appeal proposal would be significantly at odds with, and to the detriment of, the undeveloped character and appearance of the area, compromising the open break between settlements."

iv) The appeal proposal would conflict with Policy EV2 in the 2002 Ashfield Local Plan Review. However, as the Council could not show a five year supply of housing land, that Local Plan was out-of-date. Furthermore, although the Council sought to rely on it, the Emerging Local Plan (which also had a Policy EV2, in similar terms to the 2002 Review version) was only at the examination stage, and the examining inspector had raised concerns about it; and so little weight could be afforded to that.

v) However, the Inspector concluded (at paragraph 10):

"…that the appeal proposal would result in significant detriment to the character and appearance of the area. It would, therefore, conflict with the objectives of the [NPPF], which regards good design as a key aspect of sustainable development and seeks, amongst other things, to ensure that planning should always seek to secure high quality design and to take account of the character of different areas. I consider, therefore, that the contribution that the appeal development would make towards addressing the undersupply of housing does not outweigh the harm that I have found and, thus, it is not the sustainable development for which the [NPPF] suggests there is a presumption in favour. "

vi) The Claimant had relied upon the planning permission that had been granted to the Vere Avenue/St Andrews Street Site in support of his own application. The Inspector dealt with that as follows (paragraph 11):

"Other appeal decisions granting planning permission for housing development in the area have been brought to my attention. However, these concern development sites that may more accurately be considered as urban fringe sites, being more closely related to the established built form of Stanton Hill, Skegsby and Sutton in Ashfield, with existing development bordering them. Consequently, I do not consider them, or the issues that they may have raised with regard to landscape impact, to be comparable to the appeal site, which, the isolated presence of the Miners Arms notwithstanding, is surrounded by undeveloped countryside. In any case, each proposal must be judged on its own merits."

17. The Inspector concluded (at paragraph 15) that he considered "the adverse impact of the appeal proposal would significantly and demonstrably outweigh the benefits of the scheme"; and he duly dismissed the appeal.

The Grounds of Challenge

18. In his written grounds, Mr Colville relied upon one primary broad ground of challenge, namely that the Inspector failed to take into account the impact of the planning permission that had been granted in respect of the Vere Avenue/St Andrews Street Site; or, if he did take it into account, he failed to provide reasons why he distinguished the proposed development of the Site from the Vere Avenue/St Andrews Street Site. In any event, he submitted, in all of the circumstances (including, particularly, the development at the Vere Avenue/St Andrews Street Site), the Inspector's conclusion that the proposed development would result in significant detriment to the character and appearance of the area was irrational in the Wednesbury sense.
19. Before me today, Mr Colville has developed three strands of argument.
20. First, the focus of his written skeleton argument was the submission that the application for development of the Site is not distinguishable from the permission granted to develop the Vere Avenue/St Andrews Street Site (see, e.g., paragraph 34 of the skeleton argument). The planning context is the same, i.e. a lack of housing supply, the application of Policy EV2, the emerging policy and the limited weight that can be given to that, and the consideration of the impact of the development on the character and appearance of the countryside. Indeed, he submitted, the impact of the proposed development is less than that on the other site, because of its very much smaller scale. The earlier grant of planning permission for the Vere Avenue/St Andrews Street Site is therefore a highly material consideration in respect of this application, because of the principle of consistency in public decision-making: like application must be treated alike.
21. However, during the debate before me this morning, that basis of challenge – rightly – fell away. The Inspector was certainly entitled, if not bound, to proceed on the basis that, in planning terms, the Vere Avenue/St Andrews Street Site was materially different from the proposed development; and, in refusing a grant in this case, there was no inconsistency in decision or in respect of any material findings. Of course, there was overlap in terms of relevant policy etc; but the Inspector was clearly entitled to find that the sites were fundamentally different, the Vere Avenue/St Andrews Street Site being an urban fringe site, closely related to (in the sense of directly abutting) the built form settlements of Stanton Hill and Sutton in Ashfield; whilst the proposed development was not so related and would indeed be a residential development surrounded by open land and set apart from other residential development. In short, the two sites and applications for the respective development were, clearly and as Mr Colville conceded this morning, not alike.
22. Before me today, Mr Colville concentrated on a second strand of argument, that the Inspector failed to take into account a material consideration, namely the cumulative effect of the Vere Avenue/St Andrews Street Site development and the proposed development, or the effect of the former on the latter. The Vere Avenue/St Andrews Street Site development comprises, not just the proposed 230 dwellings on two parcels of land, but also the development (or, at least, change in nature) of the Blue Land in the form of the access road and conversion of open agricultural land to recreational land. That (Mr Colville submitted) was not considered by the Inspector prior to paragraph 11 of his decision letter, and paragraph 11 itself (quoted at paragraph 16(vi) above) did not consider the impact and consequence of that other development.
23. However, forcefully as Mr Colville made those submissions, I am unable to accept them.
24. First, the point was not raised by the Claimant before the Inspector – indeed, at that stage, the Claimant was relying upon the very different point that the two developments were "the same". As I have indicated, and as Mr Westmoreland Smith emphasised, the Inspector was only required to deal with the issues before him. He did not err in law in failing to deal with an issue not raised.
25. But, in any event, in my judgment, when the decision-letter is read fairly and as a whole – as it must be read – it is clear that the Inspector considered the planning permission for the Vere Avenue/St Andrews Street Site to be immaterial to his essential analysis of the issue that was before him, namely as to the impact of the proposed development on the character and appearance of the area, and notably the countryside; and it was in fact immaterial.
26. The Blue Land was not included in the Vere Avenue/St Andrews Street Site for which development was granted: neither operational development nor change of use was permitted on it. The Site in respect of the proposed development is, and will continue to be, surrounded by undeveloped countryside including (where it abuts) the Blue Land. I was unimpressed by Mr Colvile's contention that the nature of use (and thus character and appearance) of the Blue Land will change as a result of the section 106 Agreement and unilateral undertaking: those documents, when looked at fairly and in context, are clearly designed to keep the Blue Land as open land. The fact that open land may have more paths across it and more public use does not necessarily change its character as open land; and the Vere Avenue/St Andrews Street Site inspector in 2013 found the access road etc would not have any significant effect on the character of the area. The residential development permitted then was also not found to have such an effect, expressly because it directly abutted other residential development. The Site in this case does not.
27. In my judgment, when read in full context, paragraph 11 of the Inspector's decision letter is to the effect that the Vere Avenue/St Andrews Street development was not in any way material to the application for the proposed development. For the reasons I have given, he was entitled to come to that conclusion. Indeed, in my view, the Inspector was not only entitled but right to do so; because his analysis hinged on the fact that the proposed development was on a site isolated from other residential development, and surrounded by open countryside. Thus, not only was the Vere Avenue/St Andrews Street Site very different, but that development has no material effect on the analysis because (as found by the Vere Avenue/St Andrews Street Site inspector) that development does not materially affect the character and appearance of the land, and, even if that planning permission is fully implemented, the Site will still be surrounded by open countryside.
28. Mr Westmoreland Smith submitted that this claim is an undisguised and impermissible attack on the merits of the Inspector's decision. I agree. The Inspector's decision letter must be looked at in a broad and sensible way. He clearly identified that the effect of the proposed development on the surrounding area was the key issue before him, and proceeded to assess that effect, identifying the materials which he took into account and the basis upon which he came to his decision. As Mr Westmoreland Smith submitted, the Inspector did consider the permitted development of the Vere Avenue/St Andrews Street Site, and concluded, in a clear and straightforward way, that it had a very different relationship with the surrounding area than this proposed development. Thus, the Inspector performed the required analysis of the relevance of an earlier decision, including how it differed from the case in hand. The conclusion to which he came – that the two developments were not alike in planning terms – was one to which, exercising his own planning judgment, he was clearly entitled to come. Therefore, the earlier decision was not a material consideration in this application on the basis that the two developments were alike; and, in respect of the issue as to the effect of the proposed development on the character and appearance of the area, the Inspector's essential analysis in respect of the proposed development (i.e. that it would be isolated development in undeveloped countryside) was not materially affected by the permission which had been given in respect of the other site (which was in respect of urban fringe development). Insofar as each application required consideration of the same material considerations, including policies, the Inspector took all of those properly into account. There was no unlawfulness here. What the Claimant in substance complains about is the conclusion to which the Inspector came, and not the lawfulness of the procedure by which he came to it.
29. That deals with the primary bases of challenge upon which Mr Colville relied. Each fails, despite Mr Colville's best efforts, by a significant margin.
30. The final, Wednesbury ground takes matters no further. As Mr Colville accepted, it is essentially based on the same premises. In any event, the Inspector's decision is not arguably irrational: as I have indicated, it was a decision based on his own planning judgment, to which he was reasonably – indeed, clearly – entitled to come.

Conclusion

31. For those reasons, this application is dismissed.