QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a High Court Judge
| PAUL NEWMAN NEW HOMES LTD
|- and –
|SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT (1) and AYLESBURY VALE DISTRICT COUNCIL (2)
Guy Williams (instructed by GLD) for the First Defendant
Hearing dates: 25 July 2019
Crown Copyright ©
Sir Duncan Ouseley:
The Framework 2018
"c) approving development proposals that accord with an up-to-date development plan without delay; or
d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or
ii. 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."
The Decision Letter
"Conversely, Policy GP.35 clearly relates to the effect of development upon the character and appearance of an area, which is a main issue in this case. Some of its provisions concerning design, form and materials are more relevant to a full reserved matters application, but those concerning the physical characteristics of a site and its surroundings, the natural qualities and features of the area and the effect on important public views and skylines are directly relevant to the fundamental question of whether a satisfactory development can be achieved in principle. Policy GP. 35 is therefore relevant to my decision on this outline proposal and, despite its age, its aims are consistent with those of the National Planning Policy Framework July 2018 (the Framework) in respect of achieving well-designed places and conserving and enhancing the natural environment. I therefore give it full weight."
"26. I have found that the Council can demonstrate a five-year supply of deliverable housing sites….Therefore, the planning balance set out in paragraph 11d of the Framework is not engaged by this particular trigger. It is not engaged by there being no relevant development plan policies because Policy GP.35 of the AVDLP is relevant. Indeed apart from Policy GP.2 concerning affordable housing, it is the only policy relevant to my determination of the appeal. With the exception of policies RA.13 and RA.14 discussed above, neither party referred to any other policy during the hearing. Policy GP.35 is not "out of date" and so paragraph 11d of the Framework is not engaged because the policies most important for determining the application are out of date.
27. The appellant contends that paragraph 11d should apply because it is (non-specified) housing policies are "time-expired", and I note that this position has been adopted in some, but not all, of the appeal decisions referred to by the Council Appendix 6 of its Statement. At footnote 7, this sets out specific circumstances in which paragraph 11d is engaged by the five-year housing land supply position by reference to paragraph 73. This in turn provides a specific mechanism for measuring the existence or otherwise of a five-year supply in situations where plans are more than five years old. This whole process would be unnecessary if paragraph 11d of the Framework is intended to be engaged simply because a plan is "time-expired".
28. For these reasons, the planning balance set out in Section 38 (6) of the Planning and Compulsory Purchase Act is the one to be applied in this case. I have found that the proposed development would harm the rural character and appearance of the area causing conflict with Policy GP.35 of the development plan. This conflict carries significant weight in my decision. The provision of housing, and affordable housing in particular, is a material consideration in favour of the proposal. However, because the Council complies with national policy in respect of housing delivery, this consideration does not outweigh the harm I have found. Similarly, taken together with the housing benefit, the more general economic benefit of the proposal does not outweigh the specific harm I have found.
29. I therefore conclude that the proposal should be determined in accordance with the development plan and it follows that the appeal should be dismissed."
Ground 1: the interpretation of paragraph 11d of the 2018 Framework
"These are three distinct concepts. A development plan will be "absent" if none has been adopted for the relevant area and the relevant period. If there is such a plan, it may be "silent" because it lacks policy relevant to the project under consideration. And if the plan does have relevant policies these may have been overtaken by things that have happened since it was adopted, either on the ground or in some change in national policy, or for some other reason, so that they are now "out-of-date". Absence will be a matter of fact. Silence will be either a matter of fact or a matter of construction, or both. And the question of whether relevant policies are no longer up-to-date will be either a matter of fact or perhaps a matter of both fact and judgment.
50. The answer to the question "Is the plan silent?" will sometimes be obvious, because the plan simply fails to provide any relevant policy at all. But often it may not be quite so clear-cut. The term "silent" in this context does not convey some universal and immutable meaning. The NPPF does not itself explain what the Government had in mind when it used that word. But silence in this context that surely mean an absence of relevant policy. I do not think a plan can be regarded as "silent" if it contains a body of policy relevant to the proposal being considered and sufficient to enable the development to be judged acceptable or unacceptable in principle.
51. A plan may or may not be "silent" if it does not allocate the particular site in question for a particular use, whether on its own or as part of a larger area, or if it does not contain policy designed to guide limit or prevent development of one kind or another on that site or in that location."
"Essentially "silence" is concerned with whether the development plan contains a policy or body of policy relevant to the proposal under consideration and sufficient to enable the acceptability of the proposal to be judged in principle. "Sufficiency" for that purpose does not require that the site be the subject of an allocation or a site-specific policy setting out restrictions on development. General development control policies may suffice to enable the decision-maker to say whether the proposal should be approved or refused in principle, subject to other material considerations."
"clarify that the policies which provide a specific reason for refusing development (at footnote 7) relate to areas or assets of particular importance identified elsewhere in the Framework. The decision-making part of the presumption has also been changed to provide greater clarity, so that it refers to circumstances where "there are no relevant development plan policies, or the policies most important to determining the application are out of date"; and to "refusing" rather than "restricting" development. These changes are intended to improve the application of the presumption by addressing aspects that have been subject to litigation about their scope or meaning."
Conclusions on ground 1
Ground 3: the interpretation of GP.35
"4.105. Design and landscaping of development are important priorities. An approach is required that respects the traditional character of towns and villages, and, where development in the countryside is necessary or appropriate, the traditional character of rural landscape and buildings."
"In determining planning applications the Council will seek to protect or improve the traditional building characteristics of towns, villages and the countryside. Development proposals should respect the local distinctiveness and environmental qualities of their setting and surroundings. Permission will not be granted for poor designs that harm these important visual and historic interests."
"The design of new development proposals should respect and complement: a) the physical characteristics of the site and the surroundings; b) the building tradition, ordering, form and materials of the locality; c) the historic scale and context of the setting; d) the natural qualities and features of the area; and e) the effect on important public views and skylines."
"In dealing with proposals for development in Rural Areas the Council will give priority to the need to protect the countryside for its own sake. Development will not be permitted in the countryside unless it is necessary for the purposes of agricultural or forestry, or for enterprise, diversification or recreation that benefits the rural economy without harming countryside interests."
Conclusions on ground 3