England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
PLANNING COURT

		Priory Courts 33 Bull Street Birmingham, B4 6DS
		19 July 2018

MR JUSTICE SOOLE:

1. This is a statutory review pursuant to s.288 of the Town and Country Planning Act 1990 in respect of the Decision Letter dated 23 January 2018 of the first defendant Secretary of State's Inspector, Mr Brendan Lyons. By that decision he allowed the appeal of the second and third defendants, Dr and Mrs Parsons, against the claimant council's refusal of the grant of planning permission for a development of land to the south of Bilsthorpe Road, Eakring, Nottinghamshire.
2. The appeal site comprises some 3·8 hectares forming part of a large arable field at the western outskirts of the rural village of Eakring. The proposed development is the erection of nine environmentally sustainable ecohomes, public accessible wildlife area and associated works.
3. On 9 April 2018 His Honour Judge David Cooke granted permission to proceed on one ground of appeal, namely, a challenge to the intelligibility of the Inspector's reasons. A further ground has been formally withdrawn.
4. The essential contention is that the Inspector held the local and the national policy to be both mutually consistent and mutually inconsistent in the same material respects.
5. The determination of an application for planning permission is to be made in accordance with a development plan unless material considerations indicate otherwise. (See s.70(2) of the Town and Country Planning Act 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004).
6. The National Planning Policy Framework ("NPPF") is a material consideration for these purposes. However it cannot, and does not purport to, displace the primacy given by the statute and policy to the development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme (See Suffolk Coastal District Council v Hopkins Homes Limited & Anor [2017] UKSC 37 per Lord Carnwath at para.21.
7. As to inconsistency between the development plan and the NPPF, in Bloor Homes (East Midlands) Ltd v Secretary of State for Communities and Local Government & Anor [2017] PTSR 1283, Lindblom J (as he then was) stated:

"(186) … The question of whether a particular policy of the relevant development plan is or is not consistent with the NPPF will depend on the specific terms of that policy and of the corresponding parts of the NPPF when both are read in their full context. When this is done it may be obvious that there is an inconsistency between the relevant policies of the plan and the NPPF ….".

8. By its Decision dated 6 October 2016 the council refused planning permission for the development on the basis that it would result in additional dwellings within the open countryside outside of the main built up area of Eakring. It held that this reflected local policy, which was "wholly consistent" with the NPPF in respect of building new homes in the countryside.
9. The Newark and Sherwood Core Strategy Development Plan document (CS;2011) in particular provides by Spatial Policy 3 ("SP3") that beyond "Principal Villages" new development should be:

"… within the main built up areas of villages which have local services and access to Newark Urban Area, Service Centres or Principal Villages".

10. SP3 continues at para.4.28:

"Spatial Policy 3 refers to the main built-up area of a village. For the purposes of implementation and decision making this would normally refer to the buildings and land which form the core of the village where most housing and community facilities are focused. Often villages have outlying development which, whilst part of the village, do not form part of the 'main built-up area'. Proposed new development which results in the joining of such areas to the main built-up area should be resisted".

11. The NPPF was promulgated in March 2012. It provides at para.55:

"To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as …".

12. The particular focus for the purpose of this case is on the words "isolated homes in the countryside". The four identified examples of special circumstances concern:

the need for a rural worker to live permanently at or near their place of work;

development to use or secure the future of heritage assets;

enhancement of the immediate setting by re-use of redundant or disused buildings; or

the exceptional quality or innovative nature of a designed dwelling.

13. Paragraphs 214 and 215 of the NPPF provide:

"214 For 12 months from the day of publication decision takers may continue to give full weight to relevant policies adopted since 2004, even if there is a limited degree of conflict with this framework.

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)".

14. In July 2013 the Newark and Sherwood local development framework "Allocations and Development Management Development Plan Document" ("ADMDPD") was promulgated. Under policy DM8 this stated under the heading "Development in the open countryside",

"In accordance with the requirements of Spatial Policy 3, development away from the main built up areas of villages, in the open countryside, will be strictly controlled and limited to the following types of development".

Those types were then set out.

15. In respect of new dwellings which are not for specific rural workers, it stated that:

"Planning permission will only be granted for new dwellings where they are of exceptional quality or innovative nature of design, reflect the highest standards of architecture, significantly enhance their immediate setting and be sensitive to the defining characteristics of the local area".

16. In February 2015 a "Plan Review" of the Newark and Sherwood District Council Adopted Core Strategy considered its conformity with the NPPF and concluded that NPPF paragraph 55 was, "less restrictive in terms of location". It continued:

"It also allows housing in the countryside if development fulfils one of the number of bullet point alternatives. Spatial Policy 3 restricts new housing to villages, with the only exception specifically being agricultural or forestry use".

17. The hearing before the Inspector took place on 17 October 2017. On 15 November 2017, Lang J handed down judgment in the case of Braintree District Council v Secretary of State & Ors [2017] EWHC 2743 (Admin). She held that the words "isolated homes in the countryside" in NPPF paragraph 55 primarily refers to spatial/physical isolation, thereby rejecting the claimant authority's submission that it meant "isolated from services and facilities". Her decision was supplied to the Inspector before he made his decision, together with further submissions from the parties. Lang J's decision was upheld by the Court of Appeal on 28 March 2008 [2018] EWCA Civ 610. Thus Lindblom LJ stated that the phrase "isolated homes in the countryside" "… simply connotes a dwelling that is physically separate or remote from a settlement" (see para.31).
18. In his Decision Letter, the Inspector identified the main issue in the appeal as whether the site would provide a suitable location for the proposed development, having regard to national and local policy on the location of rural housing (see para.5). In the preceding paragraph he had referred to Lang J's decision in the Braintree case. Under the heading "Local policy" he then referred to the cited sections of SP3 and DM8. He concluded that the location fell outside the main built-up area of the village of Eakring; that, save in respect of sensitivity to the rural character of the site, the development would not satisfy the conditions imposed by DM8 for new dwellings in such a location; and that accordingly the development would be contrary to the local policy.
19. The Inspector then turned to consider "National Policy". He first considered the issue of consistency between national local policy, stating as follows:

"21 The issue of consistency with national policy and guidance is among the most important material considerations. The CS was adopted prior to publication of the NPPF, so that in accordance with NPPF para.215 the application of CS policies will be affected by their degree of consistency with NPPF policies. The independent review of the CS commissioned by the Council from the government-backed Planning Advisory Service ("PAS") found the CS settlement hierarchy and spatial distribution of growth to be in conformity with the NPPF. I agree that the strategy of focusing most development in the most accessible settlements is broadly consistent.

22 With regard to CS policy SP3, the review notes that NPPF para.55 is less restrictive in the location of new housing, being based on support for the vitality of rural communities and allowing the possibility of housing in the countryside subject to special circumstances, whereas Policy SP3 seeks to direct new development to the main built-up areas of villages. However, this critique does not acknowledge that Policy SP3 does contemplate some development outside villages, but that proposals are to be addressed by the ADMDPD.

23 The ADMDPD was adopted after publication of the NPPF, so its policies have been tested for consistency. The exceptions allowed by Policy DM8 for new dwellings in the countryside closely reflect those set out by NPPF para.55. Despite the slight difference in wording ("away from … villages", rather than "isolated") the policy's effect of controlling development in the countryside can be taken as fully consistent. Although the Council now suggest that paragraph 55 was not a primary consideration in their decision, the reason for refusal of the planning application cites conflict both with paragraph 55 and with Policy DM8 without distinction between them".

20. The claimants point in particular to the final sentence of paragraph 21 and the second sentence in paragraph 23.
21. The Inspector then considered NPPF para.55 and the recent judgment of Lang J in Braintree. He concluded that the appeal site was not "isolated" within the meaning identified in that decision; and that the proposal should accordingly be weighed for its contribution to the rural area's economic and social vitality (see para.26).
22. Having considered the evidence he concluded:

"32 For the above reasons and having regard to the High Court judgment, I find that the appeal proposal would contribute to the rural area's economic and social vitality. The proposal would accord with national policy as set out by NPPF para.55".

23. Having considered various other matters, including housing land supply, the Inspector turned to consideration of "Planning Balance". Under this heading he stated as follows:

"45 I have found that the proposal would conflict with ADMDPD Policy DM8, which seems to regulate the limited degree of development in the countryside envisaged by CS Policy SP3. While these policies are not out of date by virtue of an inadequate supply of housing land, the CS policy's consistency with the NPPF was already flagged by the Council's own assessment, and their restrictive approach to development that is not in an isolated location must now be seen as at odds with the interpretation of national policy provided by the High Court judgement. As a result the appeal proposal's conflict with development plan policy is a matter of greatly reduced weight.

46 The appeal proposal would offer particular benefits in terms of the houses' environmental performance and their support for the economic and social viability of the rural community, underpinned by their controlled occupancy, low running costs and restricted sales values, and by the creation of ecologically enhanced publicly accessible green space. I consider that these are matters of considerable weight, which cumulatively provide material considerations that support a conclusion other than in strict accordance with the development plan.

47 I recognise the Council's concern that significant encroachment into the countryside could result in an unsustainable pattern of development contrary to the balance sought by the NPPF. But I am satisfied that this decision would not create a strong precedent in that respect, especially as the particular benefits of the current proposal are not likely to be frequently replicated. The merits of any future proposals would have to be assessed in the light of prevailing national and local policy at that time".

The appeal was allowed, with various conditions attached.

24. On behalf of the claimants, Mr Timothy Leader's essential and succinct submission is that paragraphs 23 and 45 of the Decision Letter simply cannot be reconciled. The local policy cannot be both "fully consistent" and inconsistent with the national policy. Nor, if the former, can the development both conflict with local policy and accord with national policy; nor can it justify the attribution of "greatly reduced weight" to DM8. There is accordingly no intelligible basis for the conclusion that was reached. He adds that this confusion as to whether or not the Inspector was holding the local and national policy to be consistent has a wider adverse effect on official decision-taking for such applications by the claimant planning authority.
25. In responding to the appeal, Ms Victoria Hutton on behalf the Secretary of State, supported by Mr Gary Grant on behalf of Dr and Mrs Parsons, submits that the Court must approach a reasons challenge on the bases that:

(a) the letter must be read fairly and in good faith without an unduly legalistic or critical approach;

(b) even where an Inspector's statement of the policy is elliptical, this does not necessarily show misunderstanding;

(c) it is necessary to ask whether the decision leaves room for genuine, as opposed to forensic, debate as to what he has decided and why;

(d) the reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law. But such adverse inference will not be readily drawn; and

(e) 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.

26. She supports these propositions which are uncontroversial from the decisions in South Buckinghamshire DC v Porter (No.2) [2004] UKHL 33; Sea and Land Power and Energy Limited v Secretary of State and Ors [2012] EWHC 1419, and Clarke Homes Ltd v Secretary of State for the Environment [1993] 66 P & CR at 263.
27. Ms Hutton submits that the appeal depends on a failure to read and consider the Decision Letter as a whole, and a particular mis-reading of the two words "fully consistent" in paragraph 23. Thus, on a full and proper reading of the decision, the Inspector:

1 interpreted NPPF para.55 in accordance with the decision of Lang J in Braintree (and as subsequently upheld by the Court of Appeal);

2 in necessary consequence held that the national policy was inconsistent with the local policy;

3 held that by reason of its location the development proposal accorded with the national policy and conflicted with local policy;

4 then weighed the planning balance in favour of the application.

None of those conclusions were challengeable or in fact challenged.

28. As to paragraph 23, the relevant words were that:

"The policy's effect of controlling development in the countryside can be taken as fully consistent".

29. This was a reference to the general effect of the policy, not that policy DM8 was in every aspect of its potential application "fully consistent" with paragraph 55 of NPPF. As was apparent from the Inspector's unchallengeable and unchallenged conclusions just referred to, that could not be said. In consequence there was no genuine, as opposed to forensic, doubt as to what the Inspector had decided and why.
30. In any event, even if the Inspector should have concluded (as was the claimant's case) that NPPF 55 and DM8 were consistent, the Inspector must necessarily have reached the same conclusion: see Simplex GE Holdings Ltd v Secretary of State [1989] 57 P & CR 306. This followed from the Inspector's correct interpretation of NMPF 55 in the light of the court's decision in Braintree.
31. In response, Mr Leader submits that it is the defendants' suggested interpretation of paragraph 23 which is tortuous and legalistic; and thus in conflict with the cited approach to the proper examination of reasons in the Decision Letter. The Inspector acknowledged that the issue of consistency was among the most important considerations (see para.21) and the words in that paragraph are clear.
32. Furthermore, if the "general effect" of the local and national policy is consistent, so must be its application. Even if it were right to infer that the Inspector was differentiating between the general effect and its application, the result would be that the local and national policies were broadly consistent (see again para.21). If so, the Inspector could not reasonably displace the statutory priority accorded to the development plan or attribute "greatly reduced weight" to DM8.
33. In consequence, there remains a fundamental contradiction within the decision. Absent clear and compelling reasons for departing from NPPF para.215, full weight should have been given to the development plan.

CONCLUSION

34. Skilfully as the contrary has been argued, I unhesitatingly prefer the submissions on behalf of the Secretary of State and Dr and Mrs. Parsons. Whilst the second sentence of paragraph 23 could perhaps have been better expressed, in my judgment the Decision Letter read as a whole leaves no room for doubt as to the Inspector's reasons for his decision to allow the appeal. The Inspector made clear and unchallengeable findings as to the correct interpretation of NPPF 55; its material inconsistency with DM8; and the accordance of the proposal with the former but not the latter. This led to an unimpeachable judgment on the planning balance in accordance with the statutory test and having regard to NPPF 215. As a consequence of those findings, there was and could be no legal or factual basis for the Inspector to conclude that DM8 and NPPF were consistent in the material respects relevant for the appeal; nor did paragraph 23 or any other part of the decision so hold. On a full and fair reading of the Decision Letter, there was no internal contradiction.
35. I add that in any event I am also satisfied the Inspector must have reached the same decision if he had held, as the claimants contend he should have done, the local and national policies to be consistent.
36. For all these reasons, the claim for statutory review must be dismissed.
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