QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Horsham District Council
|- and -
|Secretary of State for Communities and Local Government
|- and -
|Barratt Southern Counties Limited
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for the Claimant
Mr Richard Kimblin (instructed by the Treasury Solicitor) for the First Defendant
Mr Mark Lowe Q.C. (instructed by Osborne Clarke) for the Second Defendant
Hearing date: 19 November 2014
Crown Copyright ©
Mr Justice Lindblom:
The issues for the court
(1) whether, in the light of government policy in paragraph 64 of the National Planning Policy Framework ("the NPPF"), the inspector's approach to the loss of views from the appeal site was unlawful (ground 1 in the council's particulars of claim); and
(2) whether the inspector's conduct of Barratt's appeal was procedurally unfair (ground 2).
The appeal site and proposal
"Criterion 6 of the [Facilitating Appropriate Development Supplementary Development Document] states that the proposed development must protect, conserve and/or enhance landscape character. The Council will demonstrate that the scale, height and massing of the scheme would lead to substantial harm to the landscape character of the area, and would have a distinctly urbanising impact on the rural landscape character of the countryside."
"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."
"Permission should be refused for development of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions."
This succeeded the policy in paragraphs 13 and 34 of Planning Policy Statement 1 ("Delivering Sustainable Development") – one of the statements of government planning policy replaced by the NPPF – which said that such development "should not be accepted".
"The appeal scheme is considered to represent a poor design that fails to integrate and respond to the sensitivity of the rural landscape character of the area. The proposed development therefore fails to meet the requirements of policy [sic] 64 of the Framework, and permission should therefore be refused."
Mr Hutchison returned to that policy in paragraph 7.1.3 of his proof. There he said that the NPPF "is also clear that irrespective of whether the Council's housing policies, or any others for that matter, are out of date, poor design and design that does not take the opportunities available for improving the character of an area should be refused permission (paragraph 64 of the Framework)".
"There are opportunities to improve structure of the boundaries. The appeal site is fundamentally a sensitive site. It is in my view poor design blocking off views. …".
"I would have been able to take into account and create a corridor of open views to protect them."
The inspector's decision letter
- What effect the development would have on the character and appearance of the landscape, including in the transition from the existing built up area towards the countryside.
- Whether the design of the development would take any opportunities that are available to improve the character and quality of the area and the way it functions".
The next four main issues concerned the effect the development would have on a listed building (the grade II listed Camellia Cottage), its likely effect on the capacity of the local road network and "sustainable travel objectives", and whether sustainable arrangements would be made for drainage and other infrastructure. The last main issue was this:
- Whether this would be a sustainable development and whether any significant and demonstrable harm in these regards would be outweighed by the benefits of housing provision to address identified requirements".
"Some of the outward views from parts of the existing footpath would be obscured by the proposed development. However other views would remain, particularly from the higher ground at the eastern end of the path, where a view of the Downs above the rooftops should survive, and in glimpsed views northwards through occasional gaps between the buildings. Moreover it is proposed that new paths with public access would be created to the north and south of the houses. These would provide some outward views, but because they would be on lower ground and close to the planted site margins, the available views would be more restricted than those currently available from the public footpath. Nevertheless views towards either the north or the south are available from a number of footpaths and other locations around Henfield and some long views would remain from locations on the appeal site."
"At the Inquiry the Appellant's landscape witness acknowledged that, had long outwards views been analysed, it may have been possible to reduce the effect on such views. However it was not indicated how this might have been achieved and what effect this may have had on other objectives including the efficient use of the land and the protection of local views. I consider it likely that there would have been conflict between these objectives. To create more panoramic views to the north and south from the centre of the site it would have been necessary to either significantly reduce the overall amount of development or to reduce the areas of open space, whether at the edges of the development or alongside the east-west public footpath. A reduction in perimeter planting to keep outward views more open would also be likely to expose more houses in inward views from the countryside. That would also make the development appear more exposed on the skyline and would conflict with an objective of the Local Distinctiveness Guidelines to screen larger settlements."
"It is concluded that the site is not of particular landscape value and that, as an urban extension, the development would result in an inevitable change in the present landscape character. The design and layout would however respect the surroundings by retaining an open and green appearance at the edges of the development and adjacent to the footpath across the site. That public footpath does afford simultaneous panoramic long views which some people value and which would be lost. The effect would be partially mitigated in that some long views would remain from part of that path and from other paths in the wider area and because some more limited long views would also be available from other new paths on the site. Nevertheless there would be some adverse visual impact and the visual changes would adversely affect the appreciation of the landscape of neighbouring areas."
"It is concluded that if there is a need for an urban extension on this scale to meet housing needs … then this design approach is reasonable for this site and has regard to its context and to local distinctiveness. By taking available opportunities to create areas of open space, protect some of the character of adjoining lanes, provide new rights of way, and use locally distinctive styles and materials, it would broadly accord with the design objectives of the Framework and would not be a poor design in the terms of paragraph 64 of the Framework."
"It is concluded above that there would be some adverse environmental impacts and associated conflict with some objectives of the development plan and the Framework. In particular there would be a loss of open countryside, changes to local views and to the character of rural lanes, a loss of some long views from parts of the footpath across the site, and a failure to fully preserve the present open setting of a listed building or buildings resulting in a (less than substantial) effect on heritage significance. … But the early provision of new homes in circumstances of a local shortfall also merits considerable weight and importance, particularly as the recent regional and national shortfall in housebuilding has been widely reported, as has the current high level of demand. Some of these environmental effects would be experienced in any expansion of a built-up area and the proposed design provides substantial mitigation. It is not a poor design as some have suggested."
The inspector's conclusion in this part of his report was that the likely "adverse environmental effects" of the proposed development were "limited" and did not outweigh "the considerable social and economic benefits". Policy in the NPPF did not indicate that the development should be restricted. The development would therefore be "sustainable", and "the presumption in favour of such development should be applied". This was, said the inspector, "a material consideration which here outweighs a literal conflict with some development plan policies and especially those policies that are out of date in respect of housing supply".
Was the inspector's approach to the loss of views from the appeal site unlawful?
(1) An application under section 288 of the 1990 Act does not afford "an opportunity for a review of the planning merits" of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith Stainless, at paragraph 6). The weight to be attached to any material consideration and all matters of planning judgment are for the decision-maker, who is free, so long as he does not "lapse into Wednesbury irrationality", to give material considerations "whatever weight [he] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment  1 WLR 759, at p.780F-H).
(2) The interpretation of planning policy is ultimately a matter of law for the court, but the application of relevant policy is for the decision-maker. Planning policies are not to be construed with the rigour appropriate to the interpretation of a statute or a contract. Statements of policy will be interpreted objectively by the court in accordance with the language used, read in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgement of Lord Reed in Tesco Stores Ltd. v Dundee City Council  P.T.S.R. 983, at paragraphs 17 to 22). When it is suggested that an inspector has failed to understand a relevant policy the court must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, in South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83).
(3) Decision letters of the Secretary of the State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. They are written principally for parties who know what the issues between them are. An inspector does not have to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). The reasons for a decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No.2)  1 WLR 1953, at p.1964B-G).
"There is certainly no legal principle of which I am aware that permission must be refused if a different scheme could achieve similar benefits with a lesser degree of harmful effects. In such a situation, permission may be refused but it does not have to be refused. The decision-maker is entitled to weigh the benefits and the disbenefits of the proposal before him and to decide (if that is his planning judgment) that the proposal is acceptable, even if an improved balance of benefits and disbenefits could be achieved by a different scheme. …".
Did the inspector act unfairly?