QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HOPKINS HOMES LTD
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) SUFFOLK COASTAL DISTRICT COUNCIL
Jonathan Clay (instructed by The Solicitor to the SCDC) for the Second Defendant
Hearing date: 20 January 15
Crown Copyright ©
Mr Justice Supperstone :
The policy framework
i) Policy SP19 is a Settlement Policy which provides that modest estate-scale housing development is appropriate within the defined physical limits of Key Service Centres, Yoxford being one such settlement. Outside these settlements, that is in the "Countryside", the policy provides :
"No development other than in special circumstances."
ii) Policy SP27 would "permit housing development within defined physical limits".
iii) Policy SP29, The Countryside, provides:
"The strategy in respect of new development outside the physical limits of those settlements defined as [Key Service Centres] is that it would be limited to that which of necessity requires to be located there and accords with other relevant policies within the Core Strategy (e.g. Policies SP7 or DM13); or would otherwise accord with special circumstances outlined in paragraph 55 of the National Planning Policy Framework."
Paragraph 55 of the NPPF relates to housing.
"Parks and gardens of historic or landscape interest
The District Council will encourage the preservation and/or enhancement of parks and gardens of historic and landscape interest and their surroundings. Planning permission for any proposed development will not be granted if it would have a materially adverse impact on their character, features or immediate setting."
The appeal site forms part of an area defined as Historic Parkland by the Second Defendant in its Supplementary Planning Guidance 6 "Historic Parks and Garden" (SPG) dated December 1995.
"The valleys and tributaries of the Rivers Alde, Blyth, Deben, Fynn, Hundred, Mill, Minsmere, Ore and Yox, and the Parks and Gardens of Historic or Landscape Interest are designated as Special Landscape Areas and shown on the Proposals Map. The District Council will ensure that no development will take place which would be to the material detriment of, or materially detract from, the special landscape quality."
"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 this Framework taken as a whole."
"identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements…"
"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."
"The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset."
Annex 2 (Glossary) to the NPPF provides that "Significance (for heritage policy)" means:
"The value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset's physical presence, but also from its setting."
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need 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  42 P&CR 26 at p.28).
(2) The reasons for an appeal 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. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and anr v Porter (No. 2)  1 WLR 1953 at p.1964 B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] 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.780 F-H). And, essentially for that reason, 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 v Secretary of State for the Environment, Transport and Regions  EWHC 74 Admin, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and 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 judgment of Lord Reed in Tesco Stores v Dundee City Council  PTSR 983, at paragraphs 17-22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one 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 LJ, as he then was, in South Somerset District Council v Secretary of State for the Environment (1993) 66 P&CR 80, at p.83 E-H)."
The Inspector's decision letter ("DL")
"12. Policy SP27 of the LP relates to Key and Local Service Centres (Yoxford is a Key Service Centre) and states, amongst other things, that housing development will be permitted within the defined physical limits or where there is proven local support in the form of small allocations of a scale appropriate to the size, local and characteristics of the particular community; the appellants do not seek to rely on the latter section of this part of the policy.
13. The appeal site is outside the physical limits boundary as defined in the very recently adopted Local Plan. The supporting text to Policy SP27 states that new housing development in such settlements would require careful consideration given environmental issues and the potential impact on their character. The requirement directing development to within the physical limits of the settlement is in accordance with one of the core principles of the Framework, recognising the intrinsic character and beauty of the countryside. I am aware that the appeal site was identified within the Council's SHLAA, along with a number of other sites within and around the settlement; however, the Council state that this was done in error and was done as a result of the failure to take account of its designation within the Historic Park.
14. I consider that the appeal site occupies an important position adjacent to the settlement, where Old High Road marks the end of the village and the start to the open countryside. The proposed development would be unacceptable in principle, contrary to the provisions of Policies SP27 and SP29 and contrary to one of the core principles of the Framework."
"In respect of these matters [i.e. effect of proposal on historic parkland and landscape], the historic parkland forms a non-designated heritage asset, as defined in the Framework and I conclude that the proposal would have an unacceptable effect on the significance of this asset. In relation to local policies, I find that the proposal would be in conflict with the aims of Policies AP4 and AP13 of the old Local Plan and Policies SP1, SP1A and SP15 of the LP."
"However, I have found significant conflict with policies in the recently adopted Local Plan. I have also found conflict with some saved policies of the old Local Plan and I have sought to balance these negative aspects of the proposal against its benefits. In doing so, I consider that the unacceptable effects of the development are not outweighed by any benefits and means that it cannot be considered as a sustainable form of development, taking account of its 3 dimensions as set out at paragraph 7 of the Framework. Therefore, the proposal conflicts with the aims of the Framework."
Grounds of challenge
i) The Inspector erred in law in his interpretation of paragraph 49 of the NPPF in relation to policies of the LP.
ii) The Inspector misdirected himself as to the status of the limits boundary to Yoxford; and
iii) The Inspector misdirected himself as to the status of Policy AP4.
Ground 1: misinterpretation of paragraph 49 of the NPPF in relation to the policies in the LP
"The question of whether policy EV2 was a policy for the supply of housing was considered by Lewis J in the Plummer case… In paragraph 34 he concluded that policy G2, providing for new development to be in Towcester, Brackley and areas closely related to the Northampton Borough boundary, but limited in the villages and severely restrained in the open countryside, was a housing supply policy relating to residential and other forms of development. Policy EV2 he described as 'somewhere between the Davis case and the Cotswold case'. In William Davis Ltd v SSCLG  EWHC 3058 (Admin), Lang J considered that a policy for the preservation of the undeveloped character of the particular area was not a housing supply policy. In Cotswold DC v SSCLG  EWHC 3719 (Admin) Lewis J held that a policy, applicable to housing and other development, restricting development outside development boundaries, was a housing supply policy. I agree with Lewis J in Plummer that EV2 is somewhere between those two cases."
"44. I am satisfied that the issue did form a significant part of the Inspector's reasoning on housing supply policy. The Inspector discussed the scope of paragraph 49 of the Framework in paragraph 172 IR. He said:
'In my view however, the effect of paragraph 49 of the Framework is broader than this. Although there must be direct effect on relevant housing policies, I agree with my colleague that the effect extends to other general development policies which are relevant to the supply of housing. There would thus be some effect on relevant environmental policies but a greater impact on the restraints included in local Planning Policies G2 and G3.'
45. I have already quoted from paragraph 199 in which he specifically considers the relationship between EV2 and paragraph 49 of the Framework, so it is clear that he considered the issue and reached a view that EV2 was a policy 'for the supply of housing'.
46. That phraseology is either very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing, ignoring any other policies dealing generally with the location of development or areas of environmental restriction, or alternatively it requires a broader approach which examines the degree to which a particular policy generally affects housing numbers, distribution and location in a significant manner.
47. It is my judgment that the language of the policy cannot sensibly be given a very narrow meaning. This would mean that policies for the provision of housing which were regarded as out of date, nonetheless would be given weight, indirectly but effectively through the operation of their counterpart provisions in policies restrictive of where development should go. Such policies are the obvious counterparts to policies designed to provide for an appropriate distribution and location of development. They may be generally applicable to all or most common forms of development, as with EV2, stating that they would not be permitted in open countryside, which as here could be very broadly defined. Such very general policies contrast with policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation, all of which could sensibly exist regardless of the distribution and location of housing or other development.
48. However, once the Inspector has properly directed himself as to the scope of paragraph 49 NPPF as he did here, the question of whether a particular policy falls within its scope, is very much a matter for his planning judgment. In this case, the policy clearly falls within the scope of the phrase and the Inspector was fully entitled to reach the conclusion on it which he did."
"The Claimants sought to argue that Policy E20 should have been treated as one of the '[r]elevant policies for the supply of housing' within the meaning of NPPF, paragraph 49 because the restriction on development potentially affects housing development. I do not consider that this is a correct interpretation of paragraph 49. Paragraph 49 is located in the section of the NPPF dedicated to housing and it refers to policies for 'the supply of housing', of which there are many in local, regional and national plans. It was agreed that the housing policies in the Development Plan in this case, were out of date by virtue of paragraph 49… However Policy E20 does not relate to the supply of housing, and therefore is not covered by paragraph 49. I was shown numerous Inspectors' decisions in which paragraph 49 had been applied but these were distinguishable from this case because the policies related specifically to housing. There were a couple of exceptions, but in so far as Inspectors have applied paragraph 49 to policies which did not relate to housing, I respectfully suggest that they did so in error. ..."
Ground 2: Misdirection as to the status of the limits boundary to Yoxford
Ground 3: Misdirection as to status of policy AP4
"I do not agree that the proposal forms an appropriate development site in this respect, but would be seen as an ad hoc expansion across what would otherwise be seen as the village/countryside boundary and the development site would not be contained to the west by any existing logical boundary."