Rosy Homes (Holt) Ltd., R (on the application of) v First Secretary of State & Anor [2003] EWHC 2199 (Admin)

Case No CO/1564/03[2003] EWHC 2199 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 9th September 2003
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE RICH QC
Between
THE QUEEN ON THE APPLICATION OF ROSY HOMES (HOLT) LIMITEDClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantWEST WILSHIRE DISTRICT COUNCIL
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J MAURICI (instructed by RUMKE JOSEPH & RABIN) appeared for CLAIMANTMR J CLAY (instructed by TREASURY SOLICITORS) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]HIS HONOUR JUDGE RICH: This is an application under section 288 of the Town and Country Planning Act to quash the decision of the first respondent's inspector, whereby he refused an appeal against a decision of the second respondent to refuse permission for the development of a site in the village of Holt in West Wiltshire. The proposal was to develop with twenty new dwellings plus office and workshop units the site of a disused factory. The form of development was held by the inspector to be satisfactory and indeed to enhance the adjoining conservation area, but he refused permission on policy grounds.[2]The policy grounds were explained at paragraph 28 of the decision letter as being contrary to policies DP15 in the structure plan, H5 in the district plan and certain other policies contained in a deposit district plan and government advice in PPGs 3 and 7.[3]The application to this Court is based on the erroneous interpretation of the development plan policies, and I make no comment therefore upon the proper interpretation of the PPGs. The distinction is a distinction of real importance because section 54A of the Act requires that where the inspector is required (as in this case) to have regard to development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise. The conclusion therefore that the proposed development would, as the inspector held, be contrary to the policies of the structure plan and the district plan determines his decision unless material considerations indicate otherwise. If those policies do not have that affect, the material considerations upon which the appellant relied become themselves determinative.[4]The claimant in this appeal refers to certain other material considerations in relation to the conservation area as to which he would submit the inspector also fell into error. Since I have concluded that the claim that the inspector interpreted the development plan policies in a way which was not possible on a proper reading of those policies, is right, I do not deal with those other considerations or whether the inspector's determination, based on it, can also be properly impugned. This is because, on the remitted decisions, the first respondent will have to redetermine the matter in the light of the proper interpretation of the development plan policies and the weight to be attached to the matters that were argued under the head of other material considerations will, for the reasons that I have already indicated, be different and therefore those matters will have to be reopened and reconsidered in any event.[5]The policies to which the inspector said that the development was contrary, were, firstly, although he did not put it in this order, H5 of the district plan. That policy identified that "Village Policy Limits" which the inspector referred to as VPLs "have been defined for the following villages as indicated on the Proposals Map", and amongst them was listed Holt. The policy goes on:
"Limited development within the defined Village Policy Limits will be permitted provided that [and there were four criteria established.] A The development would be in keeping with the character of the surrounding area. B It would not create inappropriate backland or tandem development. C It would not result in the loss of an important open space or visual gap; or D It can be satisfactorily serviced and does not create highway problems."
The appeal site was not included within the VPL for the village of Holt.[6]Policy H7 of the district plan provided:
"New dwellings in the countryside unrelated to any established village will not be permitted unless justified in connection with the essential needs of agriculture or forestry."
The inspector, in paragraph 19 of his decision letter, said that he accepted that policy H7 in the district plan would not apply to this proposal:
"as it concerns new dwellings in the countryside unrelated to any established village."
He went on in that paragraph, however, to say:
"Both main parties agreed that the site did not lie in the 'open countryside' or 'countryside' in either their everyday or planning meanings and that it was well related to the settlement of Holt. This seems to leave the site in a policy vacuum in that it lies outside the VPL but not in the countryside. I do not believe that this policy interpretation is correct."
He then went on to give reasons to which I must refer, for in effect treating this site which was outside the VPL as if policy H7 applied to it, although he did so by construing policy H5 as requiring development within the village of Holt but not within the VPL to be resisted.[7]That somewhat convoluted allocation of the site to a rewritten policy H5 necessarily flowed from the inspector's acceptance that policy H7 did not apply to the site for the reasons that he had just given. His reasoning proceds paragraph 20:
"Policy H5 is silent on the planning designation of land beyond VPLs, and so I must turn to the reasoned justification or explanatory paragraphs with the District Plan for clarification."
[8]Pausing there, I have been helpfully directed to the provisions of section 36 of the Act, which provides in subsection (6) that a local plan shall, besides the written statement required, also contain "(b) such explanatory matter in regard to the policies as may be prescribed and may contain such explanatory matter as the authority think appropriate." It follows therefore, and it is accepted at the Bar, that the explanatory paragraphs of the district plan to which the inspector turned for clarification were properly part of the district plan to which he was bound to have regard and bound to follow unless other matters indicated the contrary.[9]He continued in paragraph 20 of his decision letter:
"Paragraph 3.2.29 of the District Plan explains the VPL policy in H5 by saying that 'in the countryside, outside Village Policy Limits, residential development is to be resisted.' I consider that this means that anything outside of the VPL lies in the countryside, where residential development is to be resisted. If this were not so, then there would be no point in the definition of VPLs as any development outside them but adjacent to or related to them could be as equally acceptable as development within them. Thus VPLs would gradually expand as sites on the edge of them were developed."
This explanation of the basis upon which he would construe H5 seems to me to contain at least two mistakes. The first is that paragraph 3.2.29 is not explanatory of policy H5. It is positioned in the setting out of the local plan policies, as clearly being intended to refer to policies H7 and H7A. That becomes apparent not only from the setting out of the document itself but also from its context. It reads in total:
"In the countryside, outside Village Policy Limits, residential development is to be resisted. Requirements for development will be directed to villages identified in Policy H5 and the towns which are better able to accommodate further growth. Further development in the settlements not identified in Policy H5 which could not be accommodated without detriment to the character of the settlement or local environment will be considered inappropriate. In the countryside development would be restricted to that required for the essential needs of agriculture or forestry."
That distinction between villages to which policy H5 applies and other villages in the countryside and other parts of the countryside is indeed followed through in policies H7 and H7A of which H7 provides:
"New dwellings in the countryside unrelated to any established village will not be permitted unless justified in connection with the essential needs of agriculture or forestry."
I place emphasis on the word "any". But H7A then says: "In those villages not included in Policy H5, only very limited residential infilling will be permitted within the physical limits of the settlement, provided..." certain criteria with which I will not trouble are satisfied. That is not therefore an explanation of the VPL policy, set out in policy H5.[10]Policy H5 in itself is a policy for the permitting of development which satisfies the four criteria which I have referred to within the VPLs, within the villages, to which H5 applies. As the inspector rightly said, H5 is silent on the planning designation of land within those villages but beyond the VPLs. Because it is silent, it is wrong to say, and this is the inspector's second mistake, that development outside the VPLs but adjacent or related to them could be "as equally acceptable as development within them."[11]Within the VPL's policy says that if the conditions are satisfied development will be permitted. By contrast areas to which policy H7 or H7A apply the policy is against development, at least unless in H7A it is very limited infilling and satisfied the six criteria set out in that policy. Development within the H5 villages is not, in accordance with those policies, either equally acceptable as development inside the VPLs, nor is it equally to be resisted as the development to which policy H7 applies.[12]Thus, when the inspector proceeds in paragraph 22 to consider how to apply these policies, he falls, in my judgment, into error by applying a construction of policy H5, which it will not bear. He said:
"In this case the site lies outside the VPL where the District Plan indicates that the aim in such circumstances is to resist residential development (paragraph 3.2.29). I consider that the site lies in the countryside where the same paragraph goes on to say that 'development will be restricted to that required for the essential needs of agriculture or forestry.' The proposal is not required for those essential needs. It would therefore be contrary to policy [H5]."
The decision letter, as issued in fact, referred to policy H7. But the inspector has explained that that was a typographical error and that he meant to refer to H5. Treating his decision on that basis, his determination that there is a contravention of policy H5, which has nothing to do with a site which is outside the VPL, is an erroneous interpretation of policy H5.[13]Having regard to the importance of the proper interpretation of this particular policy upon which the inspector relied, it seems to me necessarily to follow that the decision should be quashed and remitted. As I have already identified, he relied also on another policy of the development plan, namely one contained in the structure plan. His reasoning in respect of that policy is less full than is the reasoning which I have sought to examine and analyse in regard to policy H5. I think, however, that the basis of his reasoning can be identified. Policy DP15 provided that "DEVELOPMENT IN THE OPEN COUNTRYSIDE SHOULD BE STRICTLY CONTROLLED; ISOLATED NEW HOUSES SHOULD REQUIRE SPECIAL JUSTIFICATION." It is, in my judgment, to be contrasted with policy DP9, which provides that "WITHIN OR ADJOINING SETTLEMENTS SUITABLE PREVIOUSLY DEVELOPED LAND AND BUILDINGS SHOULD BE REUSED IN PREFERENCE TO THE USE OF UNDEVELOPED LAND. IN THE OPEN COUNTRYSIDE, THE APPROPRIATE RE-USE OF PREVIOUSLY DEVELOPED LAND AND BUILDINGS SHOULD BE ENCOURAGED." That makes clear, in my judgment, that the distinction between open countryside on the one hand and land which is within or adjoining settlements on the other.[14]The inspector suggested, however, that there was no distinctions between countryside and open countryside. This, he said, in paragraph 21, was his conclusion from PPG7, where he said the terms are interchangeable. Be that as it may, and it is not essential to this decision that I should analyse nor have I heard argument as to the proper analysis of PPG7, that is clearly not a proper construction of the adopted Wiltshire structure plan. Accordingly, to say that a site which clearly was not in open countryside within the terms of the structure plan would involve a contravention of policy DP15 involves a misconstruction of that policy also.[15]For those reasons, I would quash this decision and remit it for reconsideration by the first respondent.[16]MR CLAY: My Lord, I am very much obliged. The applicant applies for his costs and there is a statement of costs which has been provided -- I do not know if Mr Maurici has had an opportunity to consider those. I hand it forward.

HIS HONOUR JUDGE RICH: First of all, is that disputed?

[18]MR MAURICI: There is no objection in principle on the amount.

HIS HONOUR JUDGE RICH: What is the amount?

[20]MR MAURICI: £7,532 and 10 pence.[21]HIS HONOUR JUDGE RICH: £7,500... I imagine that the case has taken rather less time than was assumed, so presumably there has been less attendance by solicitors.[22]MR MAURICI: That is correct, that figure does not reflect any reduction.[23]HIS HONOUR JUDGE RICH: A reduction would be accepted Mr Maurici, having regard to that factor. I have not got the document. At least I do not believe I have the document in front of me.[24]MR CLAY: It is my mistake, claims for solicitor attending. There is no solicitor. We need to deduct £870.[25]HIS HONOUR JUDGE RICH: You had not committed yourself to a figure Mr Clay, what is the figure you ask for if it is less than the 7,500 which Mr Maurici has implied to concede. No doubt, he will concede it even more.[26]MR CLAY: We are on £6,657 and 10 pence.[27]HIS HONOUR JUDGE RICH: Very well. I assess the costs at £6,657 and 10 pence.[28]MR MAURICI: I make an application for permission to appeal. The only basis that I have got is that there is a prospect of persuading the Court of Appeal to reach a different conclusion. There is no point re-arguing the case to do that. My Lord, unless I do ask for that permission I also ask whether even if your Lordship were minded to refuse me permission to appeal whether your Lordship will extend the time for an appellant's late notice until 14 days after the transcript is received. Very often when one has extra time to consider it becomes clear that you do not want to appeal. If you do it within 14 days you end up appealing just to make sure. Could I ask for permission to appeal and secondly...[29]HIS HONOUR JUDGE RICH: The first, in the circumstances I hardly called on the claimant, I can hardly form the view that there is a reasonable prospect of success although of course matters of construction are matters of impression. But, so far as the time for applying is concerned, Mr Clay, is there any reason why you should not extend that to 14 days?[30]MR CLAY: My Lord, no, I would not object in terms of time.[31]HIS HONOUR JUDGE RICH: Leave to appeal is refused. Time for application to the Court of Appeal extended to 15 days.[32]MR MAURICI: Fourteen days after the transcript becomes available.

HIS HONOUR JUDGE RICH: Fourteen days after a transcript becomes available.

[34]MR MAURICI: Thank you my Lord.[35]HIS HONOUR JUDGE RICH: I am obliged. Thank you very much indeed.

Cited in 1 later judgment