Oxton Farms & Anor v Selby District Council [1997] EWCA Civ 4004

EWCA-Civ

Oxton Farms & Anor v Selby District Council

[1997] EWCA Civ 4004 · 1997-04-18

LORD JUSTICE BUTLER-SLOSS:

I will ask Pill LJ to give the first judgment.

LORD JUSTICE PILL: These are appeals by Oxton Farms and Samuel Smith Old Brewery (Tadcaster) ("the appellants") against the decision of Mr Justice May whereby he refused an application to quash a planning permission granted by Selby District Council ("the council") on 8 June 1994 for the erection of 23 dwellings with garages on field 1195, Roman Road, Tadcaster, North Yorkshire ("the site") and the construction of an access road. The appellants are landowners of adjoining land and have substantial land holdings in Tadcaster and no point has been taken upon their standing to make the application.

The council's decision was taken by its planning committee whose members had before them a 13 page report by the planning officer prepared shortly before the meeting in which he recommended a grant of permission. The central criticisms made by Mr Horton QC are of the way in which policy issues are dealt with in that report.

The Planning Officer's Report

The report is in conventional form in that it first gives a site description and sets out the planning history. It then sets out consultations with interested parties, including the County Council and local interests. Sections 70(2) and 54A of the Town and Country Planning Act 1990 ("the 1990 Act") are set out followed by policies in the County Structure Plan and the council's Rural Areas Local Plan thought to be relevant to the application.

The planning officer notes that the site falls outside the village envelope for Tadcaster as defined in the local plan. He deals with the application in relation to the structure plan and I will consider that separately. I do not propose to set out the planning officer's narrative in full. For ease of reference I have attributed letters to the paragraphs I propose to read. He states at paragraph A:

"The current application site is not allocated for development purposes and is outside the Village Envelope. It is, therefore, necessary to consider whether there are material considerations which are sufficiently compelling as to justify the granting of permission in the light of that conflict. While it is accepted that in numerical terms there is an adequate supply of land for residential development in the Local Plan area up to 1996 having regard to Local Plan allocations and permissions granted, it is very doubtful that there is an adequate supply of land which is genuinely available for development, in Tadcaster, within the Plan period, and which meets the needs of the local housing building industry in terms of availability of location and type of housing required by the market."

The report considers the land which is available at Hargarth Field and Mill Lane, both of which sites are owned by the appellants. The planning officer notes that Hargarth Field "is not to be brought forward for development by the owners in the foreseeable future". He adds that the Mill Lane site (proposed for 156 units) is to be developed and site stripping work has begun on one element involving 10 houses.

The report continues:

B "I have carried out an assessment of house completions in Tadcaster and an assessment of the remaining housing requirements for the town and have identified and assessed future supply (ie allocated sites and sites with planning permission that have not yet been built upon). I have identified the fact that at the end of March 1994, the grand total of residential planning permissions (including conversions but excluding the permission previously granted on the current application site) in Tadcaster allows for the potential development of 393 dwellings. This includes a likely 186 dwellings at Hargarth Field and the 156 units at Mill Lane/Wighill Lane. The remainder of the grant total is made up of small sites including conversions. I have also calculated that, of this grand total, the number of dwellings which could be built on land which is not owned or controlled by Samuel Smith Old Brewery or its associated companies amounts to 21 units.

C An analysis of housing completions between April 1981 and March 1992 indicates that some 480 houses have been built during that period. In addition there have been 8 conversions. It can be seen that this equates with a building rate of a little over 44 dwellings per annum in Tadcaster as a whole. The Rural Areas Local Plan identified Tadcaster's contribution to new housing provision within the plan period (1981-1966) as 683 dwellings. I believe that past rates of building need to be maintained in order for Tadcaster to fulfil its role as the largest settlement in the Local Plan area. I note that in the period April 1992 to March 1994 there have been 15 completions.

D Planning Policy Guidance Note 3 Housing is relevant to the consideration of the current application. This expresses the requirement to have a 5 year supply of genuinely available housing land and makes it clear that while a significant under supply may be an enabling factor for development, an over supply is not equivalent to harm in a planning sense. It also emphasises the need for acceptable choices of sites which are suitable for a wide range of housing types. PPG3 also makes it clear that an over provision of housing land is not in itself a good reason for refusing planning permission and that decisions on individual planning applications should not, therefore, turn on too precise a calculation of whether the supply of identified sites for housing exactly matches, exceeds, or falls short of the five year requirement. Additionally Annex B2 to the Guidance Note acknowledges that allowance should be made for sites up to 1ha which are not individually identified but which may emerge. Field 9115 is only marginally larger than this.

E As Field 9115 is outside the existing built-up limit of Tadcaster it acknowledged that the current application should be determined in accordance with Local Plan Policy HSG5 unless there are material considerations for not following that policy. The policy states that residential development outside the village limits will not be permitted unless it can be shown to be essential to the needs of agriculture or forestry or that there are other exceptional circumstances which would warrant the granting of planning permission. I consider that the genuine availability of housing land for a range of house types is most certainly a material consideration which must be taken into account. My judgement in the light of the material available to the District Council as to genuine availability is that there is ample justification for planning permission being granted in accordance with Policy HSG5 which expressly contemplates exceptions being made to the general presumption it contains. Bearing in mind the size of the site in relation to housing in Tadcaster as a whole and all the matters to which I have referred there is ample material to justify the conclusion that permission should be granted within the scope for exceptions allowed for within the policy itself. In any event, Section 54A of the 1990 Act contemplates that material considerations may justify a decision not being taken in accordance with development plan policy. In my judgement such considerations exist in the present case.

F In addition to the policies of the statutory development plans and PPG3 and PPG7 and consideration of matters of residential land supply and distribution, I have examined a number of other material considerations, ie the issues of access, drainage, impact of the proposed development on its surroundings and the form of the town, the representations of local residents and whether any special designation constrains the development of the site. There are no technical objections from the County Surveyor or the relevant drainage authorities. I consider the site to be well related to the existing form of the town and to its immediate surroundings. I do not consider that the amenities of local residents will be adversely affected to an unreasonable extent. The site is not constrained by any special designation in the development plan. In addition, I consider that the advice contained in PPG13 relating to reducing the need for travel is more properly addressed at a strategic level. I do not consider that it can be assumed that the proposed dwellings would attract commuters."

Having dealt with other matters which are not in issue, and under the heading "Conclusion" it is stated at paragraph G:

"In considering this application I have had regard to the relevant policies contained in the Structure and Local Plans for the area and central government advice relevant to housing land. I have also had regard to the pattern of planning permissions and site development in the recent, medium and long term past and to the land supply for housing in Tadcaster and the genuine likelihood of that land coming forward for development. I have also had regard to site specific issues. I have reached the conclusion having regard to all the material considerations that the development needs of Tadcaster would be best served by the granting of permission and, I believe that this action would be consistent with the requirements of statute and the advice issued by central government."

The statutory and policy framework

Section 70(2) of the 1990 Act provides that in dealing with an application for planning permission "the authority should have regard to the provisions of the development plan so far as material to the application, and to any other material considerations". Section 54A provides:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".

The relevant development plan consists of the County Structure Plan 1980, as amended in 1989, and the council's Rural Areas Local Plan adopted in June 1990 and subject to amendments, the latest of which was in 1993. The plans covered the period to 1996 and made provision for 9,000 new dwellings in the Selby District (policy H1).

Structure Plan Policy H7 reads:

"Provision will be made to ensure that a five year supply of land is always available for housing development subject to the housing figures in Policy H1. The following criteria will be taken into consideration when assessing the five year supply:-

i) Whether the land is available and can be developed within the five year period; and

ii) The needs of the local house building industry in terms of availability of location and type of housing required by the market."

The local plan includes the following policies:

"HSG 1

Provision will be made for about 750 new dwellings within the local plan area in the period from 1988 to 1996. This figure is in addition to those dwellings which already have the benefit of planning permission.

HSG 2

Provision will be made for the majority of new housing development to be located in Tadcaster and the service villages of Camblesforth, Eggborough, Hemingbrough, North Duffield and Riccall.

HSG 5

Residential development outside the existing built-up limits of those settlements identified in proposals HSG 2 and HSG 3 (which deal with other areas) will not be permitted unless it can be shown to be essential to the needs of agriculture or forestry or that there are other exceptional circumstances which would warrant the granting of planning permission."

Proposal HSG 6 refers to new agricultural dwellings. HSG 7 to conversions to residential use and HSG 8 to development of certain additional sites for low cost housing. It is not suggested that the site comes within those exceptions. The plan includes Table 1 entitled "Anticipated overall increase in dwellings during plan period 1981 to 1996" and the assessment in the report is based on the table. It is accepted that the calculation for land availability and house completions given in the report are arithmetically accurate.

Planning policy guidance note 3 entitled "Housing" was issued by the government in March 1992. Paragraph 45 provides:

"It is important that sufficient land is genuinely available in practicable terms to enable the policies and proposals in approved structure plans and adopted local plans to be carried forward. This means that sites must not only be free, or readily freed, from planning, physical and owner constraints but must be capable of being developed economically, being areas where potential house buyers want to live and be suitable for the wide range of housing types which the housing market requires".

"46. Local authorities should aim to ensure the availability of five years supply of housing land, judged against the general scale and location of development provided for in approved structure and local plans ¼ they should be able to identify specific sites realistically capable of development providing a five year supply of housing land in accordance with structure and local plan policies."

At paragraph 53:

"Marginal shortfalls in the supply of housing land are not themselves an overriding reason for granting planning permission. However, where an up-to-date land availability study shows a substantial short fall in land supply, the need to increase supply should be given considerable weight in dealing with planning applications, particularly where development can be permitted which would in other respects be in accordance with the policies in the plan. Land availability considerations should not, even in these circumstances, be regarded as overriding all other factors and as dictating permission for development which would be seriously in conflict with other adopted plan policies."

Consideration of Report

Mr Horton has made a very detailed attack upon the Report in the light of those policy statements. He accepts that the report has everything necessary in it and states that the question is "what it adds up to". The central submission is that because the site was outside the village envelope (Policy HSG 5), permission should have been refused as contrary to the development plan unless it can properly be said either that there were exceptional circumstances within the meaning of Policy HSG 5 or that material considerations indicated otherwise under section 54A. Mr Horton accepts that a shortfall in land availability may in general terms constitute an exceptional circumstance but submits that no such shortfall can properly be found in the present case. He further submits that no material considerations indicating a decision contrary to the development plan were present or were identified in the Report as being present.

While Mr Horton does not challenge the arithmetic in the Report, he submits there was no rational basis for the planning officer's concern that the target of 750 dwellings in HSG 1 would not be reached during the plan period. It is also suggested that calculations should have taken into account the "service villages" mentioned in policy HSG 2. However Tadcaster was considered separately in the plan (Table 1) and the planning officer was entitled to consider Tadcaster as a separate entity provided he took, as he did, the correct figure from the Table. The planning officer knew that development at Mill Lane had begun and it is submitted that he could not rationally form an opinion that further permissions were appropriate to enable the target to be met.

I consider that to be a submission without merit. When the planning officer reported, the period of the plan outstanding was just over 2½ years. Almost all the land with planning permission was in the ownership of the appellants and Hargarth Field was not to be developed within the period of the plan. If Tadcaster's contribution to the target in HSG 1 was to be met, 203 dwellings were required between April 1992 and December 1996. In the period from April 1992 to March 1994 there were only 15 completions. While that is not conclusive as to the likely building rate in the following three years, the planning officer was fully entitled to form the opinion and to advise the committee that further permissions in Tadcaster were appropriate if policy HSG 1 was to be implemented. The policy documents demonstrate that he was entitled to consider what was realistic and what land was genuinely available. There is no merit in the further submission that the committee were irrational in failing to ask the planning officer for more information on this subject.

It is then submitted that there was no rational basis for the planning officer's view that the grant of permission for 23 dwellings would solve the problem. That is a hopeless submission. It has to be accepted that at best the grant would only partly solve the problem. A grant which may make a contribution to meeting the assessed need is not irrational because it does not wholly meet the assessed need.

Complaint is made about the inclusion of a reference to the "needs of the local housing building industry" and to Tadcaster "fulfilling its role" but these statements are no more than reflections of relevant policies. The first is a citation of policy H7(ii) and the role of Tadcaster as a "market town, service and employment centre serving the North West part of the district" is acknowledged in the local plan. In any event, the circumstances in which textual criticisms of a planning officer's Report, such as these, would provide a basis for quashing a subsequent decision are very rare indeed.

Reliance is placed by the appellants on the opposition by the County Council to a grant of permission. The county planning officer took the view that "adequate allowance has already been made for housing growth in the context of the approved structure plan policy". It was however the view of the Selby District Council which was determinative in this particular case and they were entitled to take a planning view different from that of the county council. The district planning officer was entitled to advise the council that the grant could not "in any way prejudice the housing policy of the structure plan". Nor is that view inconsistent with the views on land availability expressed later in the Report.

The other group of submissions is based on the proposition that, even if the material placed before the committee is acceptable, they have been misled or insufficiently advised upon their duties under section 54A and section 70(2) of the 1990 Act. Having regard to those duties and to the contents of the development plan, the Report was seriously defective, it is submitted. Because there is no appeal within the planning process against a grant of planning permission, the court should not take a restrictive view as to when to intervene. The Court should intervene if there is doubt as to whether accurate and sufficient advice was given.

It is submitted that under policy HSG 5 the site was "outside the existing built up limits" of Tadcaster. That is correct. Permission should have been refused unless there were "exceptional circumstances" within the meaning of that policy or unless there were "material considerations" which indicated that it should be granted. Careful advice from the planning officer was required and the Report, it is submitted, was muddled and failed to supply it. It is not clear from paragraphs E and F what significance was given, in the context of the policies, to the alleged shortfall of land for housing development. It is not clear whether the "material considerations" in paragraph F are mentioned for the purposes of section 54A. If they are intended to be, they are not tenable because they demonstrate only that no harm would result from development on the site. The absence of harm is not a justification for development outside a designated village envelope, it is submitted.

In considering what are development plan policies for the purposes of section 54A, the council were not obliged, and indeed would not have been correct, to consider policy HSG 5 in isolation. Other relevant policies have been set out above and were included in the Report. Policy HSG 5 must be read with policy HSG 1 and the housing provision planned. If it is accepted, as in my view it must, that the planning officer was seeking to implement policy HSG 1, the Report, read as a whole, provides for the committee information and advice which was appropriate in the context of the statutory duty upon the council. Having set out the housing requirements, the planning officer states by reference to HSG 5 "that there is ample material to justify the conclusion that permission should be granted within the scope for exceptions allowed for within the policy itself". The view that an attempt to comply with and implement policy HSG 1 is capable of being an exceptional circumstance within the meaning of policy HSG 5 is in my judgment unimpeachable. As to the reference to section 54A in the last but one sentence of paragraph E, I accept the submission of Mr Howell QC that it was intended to be read and would have been read as an alternative way of reaching the conclusion expressed in that paragraph.

Having reached the conclusion he did, the planning officer was in my view correct to go on to consider whether there were planning objections specific to the site and he did so in paragraph F, referring to access, drainage and impact on surroundings, amongst other things. The reference in that paragraph to "material considerations" is that required by section 70(2) and is not an attempted justification for departure from the development plan under Section 54A. In his conclusion, paragraph G, the planning officer states that he has had regard to "site specific issues" and his consideration of them appears at paragraph F. He was entitled to form and express the opinion in paragraph F. I agree with the Judge that there is no merit in the suggestion that the planning officer regarded land availability considerations as overriding all other factors and, further, the absence in the Report to a specific reference to part of paragraph 53 of PPG 3 is not a fatal defect.

Before stating my conclusions, I consider two other specific submissions.

Access road

The permission provided for an access road not directly onto the adjoining public highway but from the north of the site across land which does not have planning permission for residential development and then south into existing development. It is described by the appellant as the loop road and submitted that the decision to grant planning permission for a road following this route is so unreasonable that no reasonable planning authority could properly have made it. The road not only passes through the countryside but severs from the countryside an area of land between it and the existing development. In correspondence with the council, the appellants strongly objected to the access road. They submitted (letter of 28 January 1992) that no satisfactory access could be provided to the site and that refusal of planning permission was required. In representations to the council, set out in the Report, they contended that the access road would "open up land to the north which is not allocated for residential development". In his Report, the planning officer expressed the opinion that the grant of permission would not pre-empt decisions on development of land to the north.

Mr Horton now takes the further point that the proposed road is undesirable because it severs land to the south of it from the countryside. He contends that permission ought to be refused and the developers should have been required to negotiate with the appellants across whose land alternative access to the highway is possible. Shortly before the meeting of the planning committee the appellants had indicated a willingness to treat.

Having set out the planning considerations raised, I propose only to say that it fell to the council as local planning authority to make the planning decision. The council took the view that permission for 23 houses was appropriate. They were entitled also to take the view that permission should be granted for the proposed access. As to the point belatedly raised by Mr Horton, it must have been obvious to anyone who looked at the plan submitted to the planning committee.

Reference to the 1992 permission

Further objection arises from a grant of planning permission upon the site in 1992 which was quashed by May J at the same time as he declined to quash the decision now under appeal. Proceedings to quash the 1992 decision had been commenced prior to the date of the Report now under consideration. When dealing with the planning history, the planning officer referred to the application for judicial review adding that he did not "consider that any of the allegations made in those proceedings are justified and I confirm that the application is being vigorously defended by the district council and by the developer of the land".

It is submitted that members of the committee should have been told in terms to ignore their earlier decision to grant planning permission. There was a danger that they did not give proper consideration to the 1994 application because, upon the planning officer's assurance that the allegations made by the appellants in relation to that permission were unjustified, they would assume they had made the correct decision in 1992. They should have been told not to assume that they had received adequate advice on the earlier occasion.

I do not accept that submission. The committee received a comprehensive report from the planning officer in 1994 and one based on the situation as it existed in 1994. The Report did not seek to place reliance on the fact that planning permission had been granted in 1992 and members were not invited to attach weight to the earlier permission. The planning officer brought the earlier decision to the attention of the committee, and he was correct to do so, only as a part of the planning history. In my view, there is every reason to conclude that the planning committee made their decision upon the planning merits and demerits in 1994 as they saw them to be.

Conclusion

It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by Parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.

Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.

It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test.

In my view the report itself in the present case was not only comprehensive in its treatment of the facts but sufficiently advised the Committee upon the statutory and policy framework within which the decision was to be taken. The Committee were adequately advised and their decision should stand. I would dismiss these appeals.

LORD JUSTICE JUDGE: I agree.

The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.

As the analysis by Pill LJ demonstrates, the planning officer in this case took great care fairly to place the relevant legal and factual issues before the committee in a difficult planning application. In my judgment also the report is not susceptible to the criticisms directed at it.

LORD JUSTICE BUTLER-SLOSS: I agree with both judgments and that this appeal should be dismissed. Consequently the appeal by Samuel Smith Old Brewery (Tadcaster) against the decision of 9 June 1994 is dismissed; the appeal by Selby District Council against the decision of 16 November 1992 is dismissed by consent without consideration of the merits and in that case with no order as to the costs of the appeal; the appeal by Persimmon Homes (Yorkshire) Ltd against the decision of 16 November 1992 is dismissed by consent without any consideration of the merits and with no order as to costs of the appeal.

Order

Appeal dismissed; in respect of the Brewery appeal, appellant to pay the costs of the District Council and the costs of Persimmon's up to but not beyond the date of consolidation in May 1996; thereafter no order as to costs; application for leave to appeal to the House of Lords refused.