QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Gladman Developments Limited
|- and -
|Secretary of State for Housing Communities and Local Government
Central Bedfordshire Council
The first Defendant did not appear and was not represented
Saira Kabir Sheikh QC (instructed by LGSS Law Limited) for the Second Defendant
Hearing dates: 6th December 2018
Crown Copyright ©
Mr Justice Dove:
"5. The main issue is the effect of the proposed development on the character and appearance of the area, with any identified harm being assessed within the context of the Council's housing land supply situation, and the effect that this in turn, has on the weight to be given to that harm."
"11.1.1 To define the boundaries between settlements and surrounding countryside the Council has through the Proposals Map, defined Settlement Envelopes for all those communities within the district that are set out in the Settlement Hierarchy. The Settlement Envelope Review which was referred in Annex G, made recommendations to amend the Settlement Envelope boundaries. In some instances, where there is ambiguity in defining that boundary, the Envelope has been used to reflect the character of the predominant land use, using the most appropriate and clear physical features on the ground.
11.1.15 Outside settlements, where the countryside needs to be protected from the inappropriate development, only particular types of new development will be permitted in accordance with national guidance (PPS7- Sustainable Development in Rural Areas) and the East of England Plan. This includes residential development on Exceptions Schemes as set out by CS7, or dwellings for the essential needs of those employed in agriculture or forestry, or that which re-uses or replaces existing dwelling.
Policy DM4: Development Within and Beyond Settlement Envelopes:
Within Settlement Envelopes, the Council will support schemes for community, education, health, sports and recreation uses or mixed community and other uses where a need for such facilities is identified through the Infrastructure Audit or up to date evidence. Where no land is available within the settlement, a site adjacent to the settlement may be granted planning permission. Such development should make the best use of available land and lead to more sustainable communities.
Within the Settlement Envelopes of both Major and Minor Service Centres, the Council will approve housing, employment and other settlement related development commensurate with the scale of the settlement, taking account of its role as a local service centre.
Within Settlement Envelopes in Large Villages, small-scale housing and employment uses, together with new retail and service facilities to serve the village and its catchment will be permitted.
Within Settlement Envelopes in Small Villages, development will be limited to infill residential development and small-scale employment uses.
Beyond Settlement Envelopes, limited extensions to gardens will be permitted provided they do not harm the character of the area. They must be suitably landscaped or screened from the surrounding countryside and buildings may not be erected on the extended garden area."
"215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."
"35. On the surface, and read in isolation, policy DM4 is a restrictive policy based on an outdated housing need, in that it limits development outside of settlement boundaries to limited extensions to gardens, provided that they do not harm that character of that area. However the supporting text in 11.1.15 makes clear that certain types of development that are in accordance with the now defunct PPS7 will be permitted. These include exception schemes, dwellings for the essential needs of those employed in agriculture or forestry and the re-use or replacement of existing dwellings. Furthermore, the settlement envelopes referred to in the policy do not exist purely to accommodate the housing growth over the plan period but also, it is stated, to reflect the character of the predominant land use.
36. The policy is not therefore completely restrictive and, whilst I acknowledge that paragraph 113 of the Framework seeks to protect landscape commensurate with its status, and that policy DM4 does not attempt to evaluate different landscapes, the Framework also makes clear in paragraph 17 that the intrinsic character and beauty of the countryside should be recognised. Furthermore, there is nothing in the Framework that indicates that the loss of undesignated land cannot be harmful to the character and appearance of an area and this is reinforced in the Cawrey judgement, which confirms that the loss of undesignated countryside is capable of being harmful in the planning balance.
37. The overarching aim of the policy DM4 is to promote residential development in appropriate areas. This was an objective of the Core Strategy at the time that it was adopted, and whilst this was prior to the introduction of the Framework, it is still an objective that is very relevant and appropriate today and is a principle that still applies in the Framework, indeed it underpins the plan-led system, which is itself specifically supported by the Framework. Furthermore, whilst the principle of settlement boundaries is not specifically mentioned in the Framework, nor is it discounted.
38. In this particular case the Council can demonstrate a five year housing land supply which indicates that the presence and use of DM4 has not been restrictive. I acknowledge that the Inspector in the recent Meppershall decision considered that the existence of a five year housing land supply was despite the existence of policy DM4. However, to my mind the examples of instances where development has been allowed contrary to policy DM4 indicates that a balancing exercise has been carried out in a pragmatic and correct way, and that consequently DM4 has not been used to restrict suitable development.
39. I note that in the draft Local Plan the present settlement boundaries are to be superseded, with a considerable amount of housing being promoted in areas outside of current settlement boundaries, and that in some cases housing has been allocated within the Green Belt. However, it has already been established that the draft Local Plan carries little weight at the current time.
40. In summary, based on the forgoing paragraphs, I find that some discrepancy in the working of policy DM4 relative to paragraph 113 of the Framework indicated that it should not be afforded full weight. However, given that I have found that the underlying objectives of the policy still hold good, it should still command at least moderate weight and cannot therefore be construed to be 'out of date'. It follows that the tilted balance outlined in the fourth bullet point of paragraph 14 of the Framework is not engaged.
41. I note that there have been a series of appeal decisions, including two that have been issued after the close of this Inquiry, that have grappled with the weight to be given to DM4 and that the results have varied from the policy being afforded moderate weight to being out of date. I have also been made aware of appeal decisions in other Council areas that on the surface support the appellant's position. However, it would seem that the previous Inspectors, apart from two very recent decisions, did not have the Daventry Court of Appeal legal judgement before them, and it is this that has helped inform my above reasoning. Furthermore, the weight afforded by an Inspector to particular policies in an appeal scenario is a matter of planning judgement, dependent upon not only the information present, but also upon the way in which it has been presented."
"13. The consistency of various development plan policies with the Framework has been considered in a number of recent appeal decisions including those issued since the close of the Inquiry. I have had regard to these reaching my own conclusions on these matters. The parties agree that the Court of Appeal judgment in Gladman Developments v Daventry District Council (ID6) provides assistance on how the assessment of consistency should be undertaken and the matters to be considered in assessing whether a policy should be regarded as being out-of-date for the purposes of paragraph 14 of the Framework.
15. In that judgement, Sales LJ confirms that policies can be out of date even where there is a 5 year HLS and that the mere age of policy is irrelevant. Paragraph 215 requires an assessment of the consistency of the development plan policy under consideration with all relevant policies in the Framework. Since an important set of policies in the Framework encourage plan-led decision making significant weight should be given to the general public interest in having plan-led decisions even if particular policies in the development plan might be old. He also held that "the fact that the Council is able to show with the current saved policies in place it has the requisite five year supply tends to show that there is no compelling pressure by reason of unmet housing need which requires those policies to be overridden".
15. In the Meppershall decision (CD6.26) Inspector Doward found that any inconsistency with the Framework is sufficient to render a policy out-of-date and that CS Policy DM4 is out-of-date on this basis. That approach has not been followed by the other Inspectors and was challenged by the parties in the current appeal. The parties agree that what is required is a planning judgement as to the degree to which the policies are consistent with the Framework, as set out in Gladman v Daventry.
16. Gladman v Daventry is listed as an Inquiry document in the Crawley Road decision but there is nothing in that decision letter to indicate how that judgement has informed Inspector Gregory's conclusions on key policies. Her refence to it in paragraph 21 seems to be in error, with the correct reference seemingly being to the Cawrey judgement (Document ID17 in the current appeal). However, all the other Inspectors appear to have considered the degree of consistency with the relevant policies and principles in the Framework in forming their conclusions as to weight and whether or not specific policies are out-of-date.
17. Applying the Gladman v Daventry approach to CS Policy DM4, my conclusions are aligned with those of Inspector Asquith in respect of the Silsoe appeal (ID19) and Inspector Hockenhull in Stotfold. I find that Policy DM4 seeks to protect the countryside for its own sake and this blanket protection applies to all areas outside of settlement envelopes irrespective of their landscape value or sensitivity. The policy goes beyond government policy as set out in the fifth bullet of paragraph 17 of the Framework and conflicts with paragraph 113, which states that such protection should be commensurate with the status and quality of the landscape. The judgement in Cawrey (ID17) means that the loss of undesignated countryside is capable of being harmful in the planning balance. However, I do not read that judgement in supporting the DM4 approach of protecting the countryside for its own sake. In that respect, I take a different view to that reached by Inspector Gregory but, as she points out in her decision, the different conclusions reached by different Inspectors may reflect how the cases have been put to them.
18. The settlement enveloped were defined as part of a CS which sought to provide for a different and materially smaller housing requirement than the current OAN. Around 71% of the 5 year HLS comprises dwellings on sites outside of the settlement boundaries in anticipation of what allocations might come forward in the subsequent SADP. However, there has been no subsequent revision of those boundaries and some 42% of dwellings in the housing trajectory on unallocated sites are also outside of the settlement envelopes.
19. I do not know the circumstances under which all of those permissions were granted but this does provide strong evidence that the strict application of Policy DM4 would frustrate the Council's ability to achieve a 5 year HLS and that the policy is, therefore, not consistent with paragraph 47 of the Framework. These circumstances are different to those which existed in the Gladman v Daventry case in that the 5 year HLS in Central Bedfordshire exists despite rather than because of SADP Policy DM4.
20. I agree with Inspector Gregory that the Framework does not restrict the use of settlement boundary policies. However, the key issue is not the principle of their use but whether or not the Council would be able to demonstrate a 5 year HLS had the current settlement boundaries been strictly adhered to. The clear evidence is that it would not. Policy DM4 is, therefore, inconsistent with the Framework's policies in housing supply.
21. A significant number of sites outside of the existing settlement boundaries will need to be allocated in the emerging Local Plan to meet future housing needs and there are likely to include land in the Green Belt. This will be necessary to provide a forward land supply to meet the District's OAN and the Luton unmet need and a substantial review of the existing boundaries will be required once these allocations have been finalised. Although the emerging Local Plan can carry only limited weight at this stage the parties agree that the unmet need of Luton is a material consideration of significant weight (SoCG paragraph 3.3)
22. Taking all these considerations into account, I find that policy DM4 is sufficiently inconsistent with policies in the Framework to render it out-of-date for the purposes of paragraph 14. In view of that degree of inconsistency, I afford only limited weight to the policy. This finding is in line with those of Inspectors Asquith and Hockenhull and of Inspector Clark in the Cranfield Decision (ID1). Inspector Clark does not specify what weight the policy should attract but his comment that moderate weight ascribed by previous Inspectors "appears generous" indicates that he gave only limited weight to Policy DM4. He found that the policy is not out-of-date but his reasoning for reaching his judgement is not fully set out. Inspector Gregory does not set out any finding as to whether DM4 is out-of-date but concludes that it should be given moderate weight.
23. Inspector Hayden's finding in Clophill (CD6.20) that Policy DM4 is not out-of-date appears to have been made on the understanding that the 5 year supply was being met with all the relevant development plan policies in place. The strong evidence before me leads me to a different conclusion. Inspectors Parker in Potton (CD6.21) and Doward in the Meppershall decision (CD6.26) both found inconsistency with the Framework and attached moderate weight to the policy. Inspector Parker did not find the policy to be out-of-date but did not need to reach a conclusion on this question given his finding that the proposed accorded with the development plan as a whole. The weight to be given to Policy DM4 is a matter of planning judgement and the evidence before me supports my finding that only limited weight should be attached to it."
"The First Defendant confirms that it is of the view that the Inspector erred in his consideration as to whether Policy DM4 was out-of-date. In particular, he failed to give adequate reasons for departing from the two previous appeal decisions in respect of Policy DM4, in circumstances where those decisions were both recent and in which the same factual and policy background applied as in the present case."
"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
"To state that like cases should 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 in a 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 his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
"56. The two cases were, as Mann L.J. put it in North Wiltshire District Council (at p.145), "like cases", in the sense of their being, on the face of it, indistinguishable on an issue of critical importance in their determination – the interpretation and application of a relevant and significant policy in the development plan (see, for example, the first instance judgment in Pertemps Investments Ltd. v Secretary of State for Communities and Local Government and others  EWHC 2308 (Admin) , at paragraph 61). Notwithstanding the other respects in which they were different on their facts – as Mr Young emphasized, their circumstances were closely enough related on that crucial issue to call for a clear explanation of the Secretary of State's approach in the second case if it was to diverge materially from the approach he had taken in the first. Policy CT1 was relevant in both cases, and in essentially the same way. Yet the approach taken to the status of that policy – whether it was up to date or not, the conclusion reached on this question, and the consequences of that conclusion – in particular, whether the "presumption in favour of sustainable development" was engaged or not, were different. It cannot be said that such differences as there were between the two cases made it unnecessary for the Secretary of State, when determining the Newick appeal, to take into account his decision in the Ringmer appeal, and his conclusion there that Policy CT1 was up to date. And if his approach to that issue and his conclusion on it were to be different, he had to explain why. No reasonable Secretary of State could have failed to do that. The interests of consistency in appellate decision-making required it."
"35. In my view, the judge was correct in her reasoning as highlighted above. Even reading the DL benevolently, as is appropriate for planning decisions of this kind; adopting the proper approach of avoiding nit-picking analysis of a decision letter with a view to trying to identify errors when in substance there are none; and also bearing in mind the expertise of the Inspector and his likely familiarity with the NPPF, it is clear that the Inspector has failed to grapple as he should have done with the issue posed by para. 215 of the NPPF.
36. This is not just a matter of a failure to give reasons. It is clear from the DL read as a whole that the Inspector has not sought to assess the issue of the weight to be accorded to policies HS22 and HS24 under the approach mandated by para. 215 at all. As the judge correctly identified, this appears from the deficiencies of the Inspector's reasoning at DL68 and his excessively narrow focus on paras. 47 and 49 of the NPPF, to the exclusion of other relevant policies in the NPPF which ought to have been brought into account in any proper analysis of the consistency of policies HS22 and HS24 with the policies in the NPPF. I add that it is a notable feature of the DL that, after making the necessary correction for the Inspector's slip in DL15 in referring to para. 215 of the NPPF when he meant para. 113, the DL makes no reference at all to para. 215, even though that was the provision in the NPPF which set out the approach which the Inspector ought to have followed."
"41. In the particular circumstances of this case Mr Kimblin submitted (i) that the facts that policies HS22 and HS24 appeared in a Local Plan for the period 1991–2006, long in the past, and were tied into the Structure Plan (in particular, in relation to policy HS24, as set out in the explanatory text at para. 4.97 of the Local Plan), which is now defunct, meant that very reduced weight should be accorded to them; (ii) that the Local Plan policies in relation to housing supply, which include policies HS22 and HS24, are "broken" and so again should be accorded little weight; and (iii) that policies HS22 and HS24 have been superseded by more recent guidance, in the form of para. 47 of the NPPF, and so should be regarded as being outdated in the manner explained by Lord Clyde in City of Edinburgh Council . I do not accept these submissions.
42. As to (i), policies HS22 and HS24 were saved in 2007 as part of a coherent set of Local Plan policies judged to be appropriate for the Council's area pending work to develop new and up-to-date policies. There was nothing odd or new-fangled in the inclusion of those policies in the Local Plan as originally adopted in 1997. It is a regular feature of development plans to seek to encourage residential development in appropriate centres and to preserve the openness of the countryside, and policies HS22 and HS24 were adopted to promote those objectives. Those objectives remained relevant and appropriate when the policies were saved in 2007 and in general terms one would expect that they remain relevant and appropriate today. At any rate, that is something which needs to be considered by the planning inspector when the case is remitted, along with the question of the consistency of those policies with the range of policies in the NPPF under the exercise required by para. 215 of the NPPF. The fact that the explanatory text for policy HS24 refers to the Structure Plan does not detract from this. It is likely that the Structure Plan itself was formulated to promote those underlying general objectives and the fact that it has now been superseded does not mean that those underlying objectives have suddenly ceased to exist. As the judge observed at , "some planning policies by their very nature continue and are not 'time-limited', as they are re-stated in each iteration of planning policy, at both national and local levels."
43. As to (ii), the metaphor of a plan being "broken" is not a helpful one. It is a distraction from examination of the issues regarding the continuing relevance of policies HS22 and HS24 and their consistency with the policies in the NPPF. As Mr Kimblin developed this submission, it emerged that what he meant was that it appears that the Council has granted planning permission for some other residential developments in open countryside, i.e. treating policy HS24 as outweighed by other material circumstances in those cases, and that it relies on those sites with planning permission, among others, in order to show that it has a five year supply of deliverable residential sites for the purposes of para. 47 (second bullet point) and para. 49 of the NPPF. Mr Kimblin says that this shows that the saved policies of the Local Plan, if applied with full rigour and without exceptions, would lead the Council to fail properly to meet housing need in its area, according to the standard laid down in paras. 47 and 49 of the NPPF. Therefore, he says, no or very reduced weight should be accorded to policies HS22 and HS24.
44. In my view, this argument is unsustainable. We were shown nothing by Mr Kimblin to enable us to understand why the Council had decided to grant planning permission for development of these other sites. So far as I can tell, the Council granted planning permission in these other cases in an entirely conventional way, being persuaded on the particular facts that it would be appropriate to treat material considerations as sufficiently strong to outweigh policy HS24 in those specific cases. Having done so, there is no reason why the Council should not bring the contribution from those sites into account to show that it has the requisite five year supply of sites for housing when examining whether planning permission should be granted on Gladman's application for the site in the present case. The fact that the Council is able to show that with current saved housing policies in place it has the requisite five year supply tends to show that there is no compelling pressure by reason of unmet housing need which requires those policies to be overridden in the present case; or – to use Mr Kimblin's metaphor – it tends positively to indicate that the current policies are not "broken" as things stand at the moment, since they can be applied in this case without jeopardising the five year housing supply objective. In any event, an assessment of the extent of the consistency of policies HS22 and HS24 with the range of policies in the NPPF is required, as set out in para. 215 of the NPPF, before any conclusion can be drawn whether those policies should be departed from in the present case.
45. Finally, as to point (iii), the judge dismissed this contention at  by ruling that para. 47 of the NPPF sets out policy for a planning authority's plan-making, not decision-taking. There is conflicting authority on this point at first instance, since Hickinbottom J ruled in Cheshire East Borough Council v Secretary of State for Communities and Local Government  EWHC 892 (Admin) , at , that although the first bullet point of para. 47 relates to an authority's plan-making function, the rest of the paragraph is not so restricted and applies also to decision-making; and see, to similar effect, the observation in passing of Coulson J in Wychavon District Council v Secretary of State for Communities and Local Government  EWHC 592 (Admin) , at . "
Submissions and conclusions
"17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking these 12 principles are that planning should:
- Take into account of the different roles and characters of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it
113. Local planning authorities should set criteria based policies against which proposals for any development on or affecting protected wildlife or geodiversity sites or landscape areas will be judged. Distinctions should be made between the hierarchy of international, national and locally designated sites, so that protection is commensurate with their status and gives appropriate weight to their importance and the contribution that they make to wider ecological networks."
Mr Goatley submitted that the Inspector failed to address the point raised in paragraph 17 of the Meppershall Inspector's decision that these policies adopt a hierarchical approach to the status and quality of open countryside as a landscape resource rather than, as in previous national planning policy, protecting the countryside for its own sake. Furthermore, the Inspector failed to grapple with the evidence both before the Inspector at Meppershall and before him that a very substantial majority of the current five-year housing land supply was on sites which were outside settlement boundaries protected by policy DM4.