Persimmon Homes (North West) Ltd. & Ors v The First Secretary of State & Anor [2006] EWHC 2643 (Admin)

[2006] EWHC 2643 (QB)Case No CO/1331/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/10/2006
Before
THE HON MR JUSTICE BEAN
Between
PERSIMMON HOMES (NORTH WEST) LIMITED AND OTHERSClaimantsTHE FIRST SECRETARY OF STATEDefendantsWEST LANCASHIRE DISTRICT COUNCILDefendant
Roger Lancaster (instructed by Halliwells, Manchester) for ClaimantsHereward Philpot (instructed by The Treasury Solicitor) for DefendantsHearing date 16 October 2006
Judgment
[1]On 3rd August 2004 Persimmon Homes (North West) Limited submitted to West Lancashire District Council a planning application for a residential development of 56 dwellings in Skelmersdale. The Council refused permission by a notice dated 10th December 2004. An appeal against the decision to refuse was held on 8th and 9th December 2005 before an Inspector appointed by the First Secretary of State. By a decision letter dated 6th January 2006 the Inspector, Dr A N Pykett, dismissed the appeal. This is an application under section 288 of the Town and Country Planning Act 1990 to quash that decision.[2]As the Inspector recorded in paragraph 15 of his decision, the appeal site, located off Tanhouse Road, Skelmersdale, could be accurately described as derelict. Until 1993 it had been occupied by a school. The buildings were subsequently occupied by two industrial concerns between 1998 and 2003. After the last occupant left, the buildings were the subject of an arson attack, sustained irreparable fire damage and were demolished. Significant slab foundations and tarmac areas remain to this day.[3]The Inspector identified three related issues which were the subject of evidence and argument before him. They comprised the compatibility of the proposed development with:-(a) the management and release of housing land in the area;(b) the regeneration of Skelmersdale;(c) the use of the land and the character of its surroundings.[4]Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. By virtue of section 38(3) the development plan consists of the regional spatial strategy for the area and the development plan documents (taken as a whole) which have been adopted or approved in relation to that area. In this case the principal one, and the most recent, was the Joint Lancashire Structure Plan, adopted by Lancashire County Council in March 2005. The development plan documents include the West Lancashire Local Plan, adopted in 1999 and currently being revised, but this did not feature in submissions before me. The regional spatial strategy (RSS), ‘Regional Planning Guidance for the North West’, was published in March 2003.[5]Policy UR7, ‘Regional Housing Provision’, states that local planning authorities should monitor and manage the availability of land identified in development plans to achieve the annual average rates of housing provision set out in table 5.1 and in doing so must seek to minimise the amount of land needed for new housing by, inter alia, maximising the re-use of vacant and under-used land and buildings, and by considering the impact of new housing development on the existing housing stock and market in the immediate area and adjoining districts. Table 5.1 envisages an annual average rate of housing provision (net of clearance) over the lifetime of the plan of 2,690 for the shire county of Lancashire, including Blackburn with Darwen and Blackpool.[6]Policy UR8, entitled ‘Phasing Mechanism for Release of Housing Land’ reiterates that land allocated for housing should be released in an orderly, managed manner. It requires that all development plans should incorporate phasing mechanisms which:
‘… secure the development of previously developed land and buildings in urban areas as a first priority; allow for the release of land for housing in phases over the period of the plan, the timing of release to take account of the need for co-ordinated vision of the necessary infrastructure and the overall availability of land for housing identified in the housing provision studies; and take account of the potential housing land provision and policy framework in place in adjoining local authority areas to ensure a sub-regionally consistent approach that does not undermine urban renaissance in other districts’
[7]The joint Lancashire Structure Plan (JLSP) states in Policy 12 that provision will be made for 3,390 new dwellings for new households in West Lancashire in the period 2001 to 2016. The figure is sub-divided into an annual average of 305 for the years 2001 to 2006 and of 185 for the years 2006 to 2016. Under the heading ‘Calculating New Housing Requirements’, the JLSP provides:- ‘…the requirement for new housing allocations/approvals should consider the annual rate of provision within the particular phase of the Plan period. Districts should aim to meet the annual housing provision on a yearly basis as closely as possible… Most Districts are in a situation of over supply of planning permissions far exceeding the annual requirement. This is likely to be the case in most areas for a number of years. A District will move to a situation of undersupply, requiring the granting of further planning permissions, when the expected annual of number of completions that is estimated will arise from existing planning permissions is below the annual requirements set out in Policy 12. The ability of current housing approvals and other planned housing land shown in a Local Plan/Local Development Framework to satisfy the annual provision figures will indicate whether additional sites should or should not be approved at that point in time….. However, where the annual housing provision for a particular year or phase is exceeded, possibly because of higher than expected windfall developments, or sooner than anticipated implementation of housing approvals, a consequential adjustment will need to be made to the annual provision to be met in subsequent years…..’[8]Under the heading ‘Sub-Regional Perspectives’, paragraph 6.3.19, the JLSP states:- ‘In Preston, there is only a limited need for green field development beyond existing planning permissions. A small amount may be required in West Lancashire District at Skelmersdale because of the very limited brown field capacity in the former new town. Policy 12 requires the provision of 3,390 dwellings over the Plan period in West Lancashire district. Of this total, at least 850 should be located at Skelmersdale in order to assist its regeneration.’[9]Another potential development site in Skelmersdale referred to in the Inspector’s decision is known as the Whalleys. Unlike the site the subject of this appeal, it is a green field site. The proposal there is for the building of 350 dwellings. Paragraph 21 of the decision letter states:- ‘The appellants [argue] that the allocation of the Whalleys site is unlikely given its green field status, and that it should not be assumed the 350 dwellings should necessary be constructed at that location…. Even if the Whalleys land is allocated, the 350 dwellings are likely to be built significantly later in the structure plan period than the council suggests. In contrast, if the appeal is successful the 56 dwellings would be built in two years – 2006/7 and 2007/8.’[10]The Inspector considered the land supply management issue at paragraphs 19 to 23 of his decision. He noted that it was agreed that as at March 2005 there was a total supply potential of 3541 dwellings for West Lancashire, an over supply of 151 dwellings compared with the figure given in the JLSP for the period to 2016. But the potential over supply at the end of the structure plan period, he found, disguises significant variations in the trajectory for each year. If homes are built as predicted the greatest cumulative excess will be in 2009/10, when there would have been just over 1000 more dwellings completed than the JLSP considered necessary. (This figure, however, included the 350 specifically earmarked for the regeneration of Skelmersdale, which it was assumed would be constructed at the Whalleys.) He writes at paragraph 20:- ‘the council argues that even if this allocation [of 350] is removed from the trajectory, there would still be a considerable over-supply during most of the plan period – up to a cumulative excess of 722 dwellings in 2009/10. On this assumption, at the end of the plan period there would however have been an undersupply of 196 dwellings.’[11]He concluded:- ‘22. I am, of course, unable to make any predictions or observations about the matters which were considered at the local plan inquiry. I have to consider this appeal on the basis of the development plan and other material considerations as they currently exist. I have already indicated however that in view of the objections to the identification of the Whalleys land, I am unable to regard this as a firm allocation. I also have some sympathy with the appellants’ view that even if it is allocated, the requirements of policy DE2 are such that it could be some time before the development actually commences. On this basis the over-supply predicted in the housing trajectory would not be as great as anticipated. However, this does not affect the existing excess of supply over the structure plan target – the target being a figure derived directly from the statutory plan. Indeed apart from the Whalleys site (which I acknowledge is specific to Skelmersdale), I have no reason to question the trajectories provided by the council. 23. Even without the 350 dwellings referred to in policy DE1, there is likely to be an excess except for the final two years of the structure plan period. For a substantial number of the projected years the excess amounts to several hundred dwellings – a disparity which can only be aggravated by the release of additional land. I consider in relation to this issue that, whatever may happen in relation to the Whalleys site, the existing over-supply is a sufficient basis to conclude that the proposed development would be incompatible with the proper management and release of housing land in the area. As such, I further conclude the proposal would be in conflict with structure plan policy 12, and with the purposes of RSS policies UR7 and UR8. I note in this context that the structure plan is a very recent expression of policy, and paragraph 6.3.10 of the Explanatory Memorandum records both the importance of the annualised rates, and that the provisions should be regarded as maximum requirements.’[12]The Inspector then turned to the need for regeneration and environmental improvement in Skelmersdale, which he described as one of the enduring themes of the evidence submitted to the enquiry. He accepted (indeed it is obvious even to a layman) that the residential development of the land as proposed would effectively and relatively quickly result in the removal of the dereliction, and that, notwithstanding alternative means of using the site, the release of the land for housing was attractive for that reason alone. He concluded that although the regeneration benefit of the scheme would be distinctly local in its geographical extent, it would nevertheless still be a contribution to the overall benefit of the town.[13]The third issue before the Inspector was the use of the land and the character of its surroundings. The council expressed a preference for a range of uses on the appeal site including offices, workshops, open space and retailing. The Inspector considered that there were difficulties with such a project, and that it was unlikely that small retailers would be attracted to the locality. He also thought it unlikely that office or employment generating uses would wish to locate there. He found that although an acceptable alternative to more housing would be more preferable, it was unlikely to be capable of realisation.[14]The Inspector’s conclusions should be set out in full:- ’36. This case falls to be considered against a large range of plans and policies, set against a background of significant change locally and nationally. I have concluded in respect of the matters that I have identified that, notwithstanding the council’s preference, the likely future of the land is as an extension of the new housing development. I have also concluded the proposed development accords with current development plan policy in relation to the regeneration of Skelmersdale. However, as far as the first part of the issue is concerned, I believe the scheme would further aggravate the over-supply of housing land and that to allow the appeal would undermine the proper management of the land supply in the area. 37. The management of housing land supply is an important aspect of the regional and strategic planning structure of the area – a status which is maintained in the new paragraph 42(a) of PPG3 issued as recently as January 2005. I am also conscious that the structure plan is the most recent expression of development of plan policy, and that it should therefore enjoy the most substantial weight in the event of conflict with the other parts of the development plan which indicate the opposite conclusion. In addition, I have also given substantial weight to the current and projected size of the over-supply. On balance, I conclude this aspect of the proposal is sufficient to outweigh the other town-wide and more localised benefits of the scheme which I have considered under the second and third sub-heading of the main issue. For the reasons given above and having regard to all other matters raised, I conclude that this appeal should be dismissed’.[15]There was no dispute between Mr Roger Lancaster for the claimants and Mr Hereward Philpot for the defendants as to the law to be applied in this case. In Ashbridge Investments Limited v Minister of Housing and LocalGovernment [1965] 1WLR 1320 Lord Denning MR said at page 1326:- ‘Under this section it seems to me that the court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law’.[16]In Re Poyser and Mills’ Arbitration [1964] 2 QB 467 Megaw J (as he then was) said at page 478:- ‘Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.’[17]In Bolton MBC v Secretary of State for the Environment (1990) 61 P and C R 34 Glidewell LJ suggested that the following propositions could be deduced from the authorities:- “1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J’s judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments, have the same meaning. 2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb “might”, I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account 3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account. 4. As Hodgson J said, there is clearly a distinction between matters which a decision maker is obliged by statue to take into account and those where the obligation to take into account is to be implied from the nature of the decision and the matter in question. 5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category it is for the judge to decide whether it was a matter which the decision maker should have taken into account. 6. If the judge concludes that the matter was “fundamental to the decision”, so that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid. 7. Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”[18]Mr Philpot referred me to three similarly uncontentious authorities:- “Matters of planning judgment are within the exclusive province of the inspector. An application under section 288 is not an opportunity for a review of the planning merits of the Inspector’s decision, and the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits” (see R (Newsmith Stainless Ltd.) v. Secretary of State for the Environment. Transport and Regions [2001] EWHC Admin 74, per Sullivan J at paragraphs 6 to 8). The weight (if any) to be attached to a material consideration in determining a planning appeal is entirely a matter for the decision-maker: Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at p. 764G-H and per Lord Hoffmann at p. 780 F-H). “The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only tothe main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. 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” (South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, per Lord Brown).’[19]The main ground of complaint, both in the Claim Form and in Mr Lancaster’s oral and written submissions, was that the Inspector’s calculations were wrong. Having correctly concluded in paragraph 22 that he could not assume that the Whalleys site would be available, the Inspector should have deducted the 350 units envisaged for that site from the 3,541 envisaged as being available to meet the structure plan target of 3,390. There would then be a total of 3,191, a shortfall of 199 against the structure plan target. If the appellants were granted permission for the construction of 56 dwellings the shortfall would still be 143.[20]The fallacy of this argument is that it focuses entirely on the end of the structure plan period in 2016. The Inspector’s finding at paragraph 23 was that even without the Whalleys site ‘there is likely to be an excess except for the two years of the structure plan period’, that is to say throughout the period up to 2014, the peak excess being in 2009/10. The JLSP repeatedly emphasises the need to meet the requirement for housing on an annual basis as closely as possible. The Inspector was entitled to conclude that ‘whatever may happen in relation to the Whalleys site, the existing over-supply is a sufficient basis to conclude that the proposed development would be incompatible with the proper management and release of housing land in the area’. (It was suggested that this conclusion was based on assessments made by the council in Supplementary Planning Guidance prepared by it in 2003 and 2004 which had effectively been superseded. This appears to be a point without substance, since the Inspector expressly stated that he gave greatest weight to the JLSP as the most recent policy statement, and in any event his calculations appear entirely consistent with that document.)[21]Mr Lancaster further argued that the Inspector failed to have regard to the separate housing requirement for Skelmersdale of a minimum of 850 dwellings during the structure plan period, and the shortfall that was likely to occur against that figure; If the Whalleys proposal was discounted, there were only 608 dwellings in the pipeline without the appeal site and 664 with it. He submitted that the Inspector’s conclusions simply overlook the important factor of the ‘Skelmersdale 850’ figure.[22]It is true that the figure of 850 dwellings is not mentioned in paragraphs 24 to 29 of the decision letter, which deal with the regeneration of Skelmersdale. But it is specifically referred to in paragraph 7. Moreover, the Inspector’s findings in paragraphs 24 to 29 are substantially favourable to the appellant’s arguments on regeneration issues. Mr Philpot submitted, and Mr Lancaster did not disagree, that there can be no legal requirement to give the needs of the town priority over the needs of the district. As Mr Philpot submitted, the 850 is part of the 3,390. If Skelmersdale is given 850 dwellings there will almost inevitably be over-supply in the district as a whole. That was, as it appears to me, the issue which the Inspector was addressing when he concluded in paragraph 37 that the current and projected size of the over-supply in the district was ‘sufficient to outweigh the other town-wide and more localized benefits of the scheme’.[23]Mr Lancaster’s third ground of attack was that the Inspector failed to identify the exact harm that a situation of housing over supply in the district would cause, and also failed to balance against it the consequences of leaving the appeal site under developed. This is really two points. As to the first, the Inspector noted at paragraph 17 that former employment sites such as the appeal site should be released for development when no longer needed, but that this was subject to the proviso that their use for new housing ‘should not undermine the regional strategy for housing, especially where this would lead to the over-provision of housing land and exacerbate problems of low demand elsewhere’. Given that the decision letter is addressed to parties such as the claimants who are familiar with the planning process, I do not consider that further elaboration was required. As to the second point, I have already observed that it is obvious even to a layman that leaving a derelict urban site such as this undeveloped is undesirable. The Inspector considered this point at paragraphs 25 to 26 of his decision. Nevertheless he concluded that this and other localized benefits of the scheme were outweighed by the over-supply problem. That was a conclusion to which he was entitled to come.[24]I am not persuaded that the Inspector failed to take any relevant matter into account; nor that his reasoning is in any way unintelligible or inadequate. He reached conclusions on matters of planning and judgement which were, in Sullivan J’s formulation, within his exclusive province. The weight to be attached to the need to avoid over-supply in the district of West Lancashire was a matter for him. I do not consider he erred in law, whether by misunderstanding the relevant policies or otherwise.[25]Accordingly this appeal will be dismissed.