QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| VILLAGES ACTION GROUP
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
ARUN DISTRICT COUNCIL
HALLAM LAND MANAGEMENT LIMITED
DEBORAH ANN FROGATT
Richard Honey (instructed by The Government Legal Department) for the First Defendant
Thomas Hill QC and Philippa Jackson (instructed by Irwin Mitchell) for the Third Defendant
The Second, Fourth and Fifth Defendants did not appear and were not represented
Hearing date: 17 September 2015
Crown Copyright ©
Mrs Justice Lang:
i) The site was located outside of the defined boundary of Westergate which demarcated the edge of the settlement and countryside. The proposal marked a significant encroachment into the countryside resulting in an adverse impact on the character of the area and loss of countryside, contrary to policies GEN2 and GEN3 of the Arun District Local Plan 2003, and core principles set out in paragraph 17 of the National Planning Policy Framework ("NPPF").
ii) The proposed development was located in an unsustainable location, poorly related to existing services and facilities. Even following mitigation, it would therefore not be a sustainable form of development, contrary to policies within the NPPF.
iii) No section 106 undertaking had been completed to secure the provision of affordable housing for the long term, contrary to policy DEV17 of the Local Plan.
iv) The development generated a need for increased public infrastructure for which financial contributions were required but had not been secured under section 106 undertakings, contrary to policy GEN9 of the Local Plan.
i) The Council accepted it had not demonstrated a 5 year supply of housing, and despite submissions to the contrary from interested parties, the relevant policies for the supply of housing in the Local Plan (Policies GEN2 & GEN3) were to be treated as out of date, in accordance with paragraph 49 of the NPPF.
ii) Although there would be intrinsic harm through the loss of land designated as countryside, the harm would be very limited and the setting of the village would only be marginally affected by the development of this area of "unremarkable grassland".
iii) The development would cause some environmental harm, with a loss of openness and a permanent alteration to the character of the land.
iv) Despite limited public transport, and reliance on private cars, the site was not so unsustainable as to warrant refusal of planning permission for this reason alone. There were obvious economic and social benefits to the provision of 79 new dwellings. These outweighed the disadvantages in sustainability terms of the limited transport network.
v) The emerging Local Plan was likely to allocate 2000 new dwellings to the villages of Westergate, Eastergate and Barnham, on the basis that the area had been assessed as "particularly sustainable". It was likely that greenfield land would be needed to fulfil this allocation. The Inspector agreed with the Council's view that the area was suitable for expansion and the proposed development would fit in with the emerging vision for the area.
vi) Section 106 agreements made provision for a percentage of affordable housing and financial contributions to public infrastructure and services, which the Council agreed had overcome reasons for refusal (iii) and (iv).
vii) The development was not premature in the light of the emerging Local Plan.
viii) It had not been shown that the development was undeliverable.
ix) The Inspector rejected the Claimants' objections based on flood risk as a reason for refusal of planning permission. Despite evidence of flooding in the area, the Environment Agency did not object to the proposal provided that conditions were imposed to ensure a sustainable drainage system was introduced on the development.
x) The Inspector rejected the Claimants' objections based on highway safety as a reason for refusal of planning permission. The Highways Authority had withdrawn its objections about highway safety in Hook Lane, following modifications to the scheme and subject to measures introduced through the section 106 agreement.
xi) Applying the presumption in favour of sustainable development in paragraph 14 of the NPPF, the benefits of the proposed development clearly outweighed the disadvantages.
The Claimants' grounds of challenge
i) failing to have regard to a material consideration, namely, the emerging draft Aldingbourne Neighbourhood Plan, which stated (in its January 2015 draft) that use of the proposed development site to increase educational provision at primary school in Aldingbourne "will be supported"; and
ii) failing to supply adequate reasons for dismissing the concerns of the Claimants, the Parish Council and other local residents about the restriction the appeal scheme would present to the future expansion of the School.
(1) Section 288 TCPA 1990
(2) Material considerations
"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)."
"2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might", I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.
4. …there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed NZ case.
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was "fundamental to the decision", or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.
7. … Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief. "
"So the Secretary of State had to have regard to all material considerations before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all…..
…in Hope v Secretary for the Environment (1975) 31 P & CR 120, Phillips J. said:
'the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues.'
What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the "principal important controversial issues". To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden…….
Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues, and then only, as Lord Keith pointed out, when "all known facts and circumstances appear to point overwhelmingly" to a different decision."
"The respondent contends that the judge also decided that the Inspector failed in his duty to have regard to what was admittedly a material consideration — "I simply do not know if the Inspector had regard to it or not". Logically, this conclusion would seem to follow from the fact that no reference is made to it. But it is implicit in the House of Lords' ruling in Bolton No. 2, that only the "main issues" need be referred to, that the failure to refer to other issues does not mean that they have been ignored…. The material consideration which the applicants say the Inspector failed to take into account was not a "main issue" and there are no grounds for inferring that he overlooked it when he reached his decision."
(3) The duty to place relevant material before an inspector
"(2) When making his decision the inspector may disregard any written representations or evidence or any other document received after the close of the inquiry.
(3) If, after the close of an inquiry, an inspector proposes to take into consideration any new evidence or any new matter of fact (not being a matter of government policy) which was not raised at the inquiry and which he considers to be material to his decision, he shall not come to a decision without first–
(a) notifying in writing the persons entitled to appear at the inquiry who appeared at it of the matter in question; and
(b) affording them an opportunity of making written representations to him or of asking for the re-opening of the inquiry,
and they shall ensure that such written representations or request to re-open the inquiry are received by the Secretary of State within 3 weeks of the date of the notification."
(4) The duty to give reasons
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"46. The Neighbourhood Plan for Aldingbourne is currently being drafted, a working draft was submitted to the LPA on 7th November 2013 and informal comments were provided. The Neighbourhood Plan group are currently working on the supporting documents, engaging with the local community and working with landowners to ensure that they can meet the minimum housing requirements for the parish as well as land for community uses. To date it has not been subject to informal or formal public consultation.
47. Whilst the Neighbourhood Plan is a material consideration in the determination of the application, given that it is at such an early stage of permeation, minimal weight can be given to this as a planning policy document."