England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		8 March 2017

1. JUDGE JARMAN: This is a renewed application for permission to appeal the granting by Wealden District Council ofplanning permission for housing. The claimant, represented by Ms Sheikh QC, puts forward four points, each of which she submits are arguable points and invites me to give permission.
2. The first relates to highway improvements, which everyone accepts are necessary in order to mitigate the impact of this housing proposal, involving as it does some 390 houses, on the local highway network. The highway authority, East Sussex County Council, initially put in an objection to the application on two grounds:

"1. The identified improvements to mitigate the impact of the development on the highway network are required prior to development commencing in the area. The implementation and timing of the required improvements cannot be guaranteed. Without these improvements congestion on the main highway network will increase as will 'rat running' through adjacent residential streets all of which will introduce additional hazards on the highway. Additional delays will also affect the reliability of bus services. [...]

2. The suggested improvements for junctions not included in the CIL schedule are not considered adequate to mitigate the impacts of the development on the highway leading to an unacceptable level of congestion."

That reference to CIL is to the Community Infrastructure Levy Regulations 2010 (SI 2010/948), which I shall come on to in due course.

3. Accordingly, initially the highway authority recommended that the application be refused, but there were then consultations, meetings and, in relation to the second response, the highway authority withdrew its objections. It said:

"[...] the argument presented was that the primary reason for refusal was not considered valid as where highways infrastructure improvements are set out in a CIL list; that infrastructure can only be provided through the payment of a CIL contribution. The timing of the delivery of the improvements is also not within the developer's control. A requirement that the improvements are delivered prior to development is therefore inconsistent with the items being on the CIL list. Therefore in paying the CIL contributions the developer is doing everything that can be asked of them in terms of mitigation for those items on the CIL list.

Legal advice on this matter has also been sought. It has been confirmed that the case set out by the applicant was sound and the reason for refusal initially recommended could not be sustained, as there is no legal mechanism for the developer to deal with the required mitigation measures previously identified, other than through paying the CIL charge."

Ms Sheikh submitted that that is advice that is wrong.

4. Regulation 123 of the Regulations in question provides as follows:

"(2) A planning obligation may not constitute a reason for granting planning permission for the development to the extent that the obligation provides for the funding or provision of relevant infrastructure.

[...]

(2A) Subject to paragraph (2B) [which is not relevant] a condition falling within either of the following descriptions may not be imposed on the grant of planning permission—

(a) a condition that requires a highway agreement for the funding or provision of relevant infrastructure to be entered into;

(b) a condition that prevents or restricts the carrying out of development until a highway agreement for the funding or provision of relevant infrastructure has been entered into.

5. A "highway agreement" is defined as an agreement under section 278 of the 1980 Act. A copy of that section has not been put before me, but as I understand, it is agreed at the bar that that is simply an enabling section allowing a developer to enter into agreement with the highway authority for the carrying-out of works of improvement or the payment of such works to the highway network. "Relevant infrastructure" was also defined as publishing a list of infrastructure projects of types of infrastructure that intends will be or may be wholly or partly funded by [CIL itself?].
6. In the officer's report to the planning committee meeting on 13 October 2016, which was the second meeting to consider this application, the report at paragraph 4.16.12 says that the application would significantly increase traffic pressures on the local and strategic road networks and particularly on six junctions. The report went on to say that outline designs for the improvement of all six junctions exist and a number of highway improvements had been assessed. He went on to say:

"Of the six junctions set out above the following three junctions are of particular relevance to the consideration of the current application [...]"

Two of the junctions were major junctions on the A22 or the A27 or the A2270 for which Highways England was responsible. The third was an improvement by the building of extra lanes and left filter lanes for a particular junction between the High Street and Wannock Lane. At paragraph 4.16.17 the report says that the South-east Local Enterprise Partnership had agreed funding of £4 million from its growth fund towards key highway improvements in the Polegate area, including improvements to the A27/A22 junctions. In addition, there was £2.2 million in contributions agreed towards section 106 trunk road improvements. It then went on to deal with the fact that the development was based on a delivery rate of 75 dwellings per annum for the application site, the impact of the development would be incremental, taking over five years for the application site to be built out and occupied, which would be after the anticipated date for the Highways England works to the trunk roads had been completed.

7. There was only one of the junctions relevant in respect of which it appears that CIL funding may be relevant, and that is to the third junction. The funding from other developments of some £400,000 to the estimated cost of some £712,000 has been identified, and in the discussion which took place following the report in the planning committee it was said that the additional funding would or may come out of the CIL payments. Ms Sheikh says that there was no contemplation of exactlywhen the proposals may come to fruition or the imposition of a condition that the development should not take place until it did.
8. I have to consider whether it is arguable that there is an error of law. In my judgment it is not. This was a planning judgment for the planning committee to make. The officer's report, in my judgment, was very full and clear and the local planning authority was entitled to proceed on the basis of it.
9. The second ground is that the second meeting which I have just referred to was in fact a continuation of a meeting which took place before the planning committee on 15 September 2016. That meeting resolved that the application be deferred for a full committee formal site visit to understand further the drainage plan, allotment location and highway access of the proposals for the site, and that officers from the East Sussex County Council Highways Team be requested to attend the site.
10. Two of the voting members at the second meeting had not been in attendance during the first meeting. The second meeting took place over 1 hour 40 minutes. The case officer's report for that meeting ran to some 115 pages compared to 111 pages of the report prepared for the first meeting. For the appellant, it is said that matters such foul drainage, access, highway capacity and flood risk were not advanced in as much detail at that meeting as they were at the first meeting, and it is clear from the transcript that, in respect of highway matters, the meeting on the second occasion proceeded on the basis of any questions arising.
11. Ms Sheikh points to the local planning authority's Code of Good Practice, which says this at section 10(5):

"Don't vote or take part in the meeting's discussion on a proposal unless you have been present to hear the entire debate, including the officers' introduction to the matter. This would include where the committee is considering an adjourned item or a deferred item where that matter is not being fully reheard at the meeting and the member was not present at the earlier committee meeting."

12. In my judgment, on a reasonable construction of that "being fully reheard" does not mean that every single item should be rehearsed in a similar or as detailed way as in the first meeting. It is clear, in my judgment, that the officer's report dealt fully with all matters. The officers presented the report at the second meeting, as they did in respect of the first. It appears that some slides were shown, although this may be restricted to plans and matters of that sort, and it is not arguable, in my judgment, to say that the second meeting was simply a continuation of the first.
13. That leads on to the third ground. Although the first meeting adjourned or was deferred for the purposes of a full committee formal site visit, four of the ten voting members at the second meeting did not attend the site visit and two (it appears a further two) only for a partial time. Ms Sheikh again relies on the Code of Good Practice, which, in advice to officers, says that they should not request a formal site visit unless it is felt that it is strictly necessary. That underlines the importance, she submits, of such a site visit.
14. But in my judgment, what that fails to demonstrate is any issue or detail that was not clearly dealt with at the second meeting. Again, whilst it may be good practice to attend a site visit, what I have to consider is whether a failure to do so by four or possibly six members amounts to an error of law. In my judgment, it is not arguable that it does on the facts of this case.
15. Finally, in relation to ground 4, that relates to an allegation that the local planning authority failed to conduct an appropriate assessment before granting planning permission in breach of regulation 6(1) of the Conservation of Habitats and Species Regulations 2010. This arises from the fact that the site is close to the Pevensey Levels, which is a designated Ramsar site and a special area of conversation, and accordingly a European site for the purposes of regulation 61. The application site falls within the catchment area of the Hailsham South Wastewater Treatment Works, which discharges treated effluent into the Pevensey Levels under the consent of the Environment Agency. But there is a capacity problem in that particular works which prevents it from receiving any additional foul sewerage over and above the volumes which would result from this application.
16. Again, the matter was dealt with in the officer's report. It was clearly put forward that there is this capacity problem. There was a suggestion in the report that the water treatment works may be upgraded but not until 2022, but also there was reference to a private treatment centre, known as a package treatment works, which would enable the necessary purity of the treated sewerage being discharged without an impact on the Levels. The conditions which the local planning authority imposed in relation to these matters are set out first of all in paragraph 16, that:

"No development approved by this permission shall be commenced until full details of the proposed means of foul drainage disposal, including if proposed, details of any proposed Package Treatment Plant and any necessary environmental permits, have been submitted to and approved in writing by the Local Planning Authority. The approved drainage works shall be completed prior to the completion or occupation of any dwelling on site, whichever is the sooner.

[...]

19. There shall be no discharge of foul or contaminated drainage from the site into either the groundwater or any surface waters, whether direct or via soakaways. Prior to being discharged into any watercourse, surface water sewer or soakaways system, all surface water drainage from parking areas and hardstandings shall be passed through trapped gullies and silt traps to BS 5911:1982 with an overall capacity compatible with the site being drained and shall be retained thereafter."

17. Ms Sheikh, whilst accepting that in certain circumstances a condition can be imposed in this way to address potential impact on the European site, which there clearly as mentioned in the officer's report, submits that such is not appropriate where it remains entirely unknown whether a solution can be found which can avoid a potential direct impact. She submits, as is the case, that no details of any package treatment works were brought forward at that time.
18. In my judgment, that does not mean that the solution is entirely unknown. It is clear from the officer's report that the potential solutions were an upgrade to the water treatment works or a private package. In my judgment, it is not necessary to bring forth details of those, and it is not arguable that failure to do so amounts to an error of law.
19. Accordingly, and notwithstanding the persuasive, focused submissions of Ms Sheikh, I am not persuaded that this is a case where permission should be given, and accordingly I refuse it.
20. Yes, is there anything else?
21. MR LANGHAM: My Lord, I am not asking for the costs of today, but I ask that the order in relation to costs which Dove J made be not disturbed. Probably it is not.
22. JUDGE JARMAN: There is no application for me to disturb it, is there?
23. MR LANGHAM: It would appear not.
24. MS SHEIKH: There is not, no.
25. JUDGE JARMAN: Thank you all very much.