Bromley v Secretary of State for Communities and Local Government & Anor [2007] EWHC 2480 (Admin)

Case No CO/706/2007[2007] EWHC 2480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 1 st November 2007
Before
HIS HONOUR JUDGE MOLE QC(Sitting as a Deputy High Court Judge)
Between
THE LONDON BOROUGH OF BROMLEYClaimant
Stephen Whale (instructed by Legal and Democratic Services) for ClaimantPaul Brown (instructed by Treasury Solicitors) for 1 st DefendantGarrett Byrne (instructed by Boyes Turner and Burrows) for 2 nd DefendantChristopher Boyle (instructed by Davies Arnold Cooper) for Interested PartyHearing Hearing dates : 25 th September 2007
JUDGMENT
[1]This is a challenge under section 288 of the Town and Country Planning Act 1990 whereby the claimant seeks to quash the decision of an Inspector appointed by the Secretary of State. The London Borough of Bromley refused permission for outline planning permission for development of 103 and 107 Copers Cope Road and land at the rear of 91 -- 117 Copers Cope Road. By his decision letter dated 21 December 2006 the inspector allowed the appeal and granted outline planning permission, subject to conditions.[2]A challenge under section 288 may be brought on the basis firstly that the action is not within the powers of the Act. This means that the Claimant must show that the decision maker has made an error of law. He may be shown to have taken into consideration a matter that he ought not to have done, for example he may have misunderstood and misapplied the relevant policy. He may be shown to have failed to consider something he should, for example he may have ignored a matter that is plainly material to his decision. Finally, he will go wrong in law if he reaches a decision that is perverse and unreasonable in the sense that it is one that no reasonable decision maker who properly understands the law and the relevant facts could reach.[3]Secondly, the court may quash the decision if any of the relevant requirements have not been complied with and the complainant has been substantially prejudiced thereby. A most important requirement is that the decision maker must give adequate and intelligible reasons. The law on that point was authoritatively stated by Lord Brown in the case of South Bucks DC v Porter (No 2) [ 2004] 1WLR, at page 1964, thus:
" 36 The reasons 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 important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the 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 to the 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, recognising 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."
[4]The land in question is the site of a long disused plant nursery. There are trees, now the subject of a tree preservation order, on its northern part. The older buildings and greenhouses have gradually collapsed and become submerged in grass, trees, and shrubs. It lies between the rear gardens of houses in Copers Cope Road and the Mid-Kent railway line, forming a corner of a larger area of mostly open land which is largely sports grounds, playing fields, and allotments. The appeal site has been the subject of several applications for residential development, the last being rejected on appeal in 1987.[5]This appeal raises an interesting point, which is best understood in the light of the Inspector's decision and the planning history.[6]The Inspector held the inquiry on the 21st and 22nd of November 2006 and visited the site on the next day. His decision letter, dated 21st December 2006, set out the issues at paragraph 4. This challenge relates to one of those issues only. It was ‘ whether there are any very special circumstances to justify setting aside the presumption against development of the appeal site, which is Metropolitan Open Land, having regard to the supply of housing land in the Borough’. The Inspector recorded that the development plan for the area had been updated since the Council had considered the application. The relevant plans are the London Plan (February 2004) and the Bromley Unitary Development Plan 2006.[7]The policy relating to Metropolitan Open Land in the London Plan is Policy 3D.9. It provides, so far as relevant:
" The Mayor will and boroughs should maintain the protection of Metropolitan Open Land (MOL) from inappropriate development. Any alterations to the boundary of MOL should be undertaken by boroughs through the UDP process, in consultation with the Mayor and adjoining authorities. ….. Policies should include a presumption against inappropriate development of MOL and to give the same level of protection as the Green Belt. …."
The Green Belt policy is 3D.8, which reads: 8. " The Mayor will and boroughs should maintain the protection of London's Green Belt and proposals for alterations to Green Belt boundaries should be considered through the UDP process in accordance with government guidance in PPG2. There is a general presumption against inappropriate development in the Green Belt, and such development should not be approved except in very special circumstances." The relevant Bromley UDP policy is Policy G2. The relevant part of Policy G2 reads: 9. "Within Metropolitan Open Land … as defined on the Proposals Map, permission will not be given for inappropriate development unless very special circumstances can be demonstrated that clearly outweigh the harm by reason of inappropriateness or any other harm." The Inspector recorded at paragraph 6 of his decision letter that: 10. "It is common ground between the main parties that the proposed development would be inappropriate; it would not fall within any of the categories of appropriate development given in the policy. It is also not in dispute that a shortage of land suitable for housing elsewhere in the Borough could constitute the very special circumstances that would justify a review of MOL boundaries."

The Green Belt policy is 3D.8, which reads:

[8]It is evident that the debate at the inquiry on this issue revolved around the question whether the shortfall in provision for housing did amount to very special circumstances that would justify taking the appeal site out of the MOL."13. In recent years, there has been a significant and long-standing shortfall in housing completions in Bromley when compared to the Government's statutory target. At the time of the 2003/4 UDP Local Plan Inquiry, there was an identified shortfall of 1,000 dwellings and a requirement to provide a further 573 dwellings annually, to meet the minimum longer-term objective of a total of 11,450 new dwellings between 1997 and 2016. The Council maintains that over 1000 planning permissions have been granted but not implemented, and that windfall development, or those that are unexpected and/or unplanned, are very difficult to predict. However, the Inspector recommended that there was an essential need to allocate additional housing sites by means of a full sequential analysis, as recommended in PPG3, which would properly assess the merits of all the available sites and identify "reserve sites" that could be brought forward if accurate monitoring continued to show that a shortage would occur.14. The sequential analysis would identify all the other possible options including previously developed land before considering urban extensions outside the GB and MOL, which in turn would be preferable to the release of GB or MOL. The report by Nathaniel Lichfield and Partners (NLP) in May 2005 identified a larger shortfall than anticipated up to 2004, of 1500 units. Furthermore, the concern that unimplemented permissions were at a high level was not borne out; NLP found that the majority of planning permissions were carried through to construction. This suggests that there is not a significant reserve of unimplemented permissions. However, the NLP report identified significant development under construction on sites each providing more than 10 units, totalling 1102 dwellings in February 2005, added to which a large number of minor schemes were also in progress.15. Notwithstanding the improved progress, NLP conclude in paragraph 10.4 of their report that it is inevitable that the appeal site will be required during the plan period, along with three other "level 2" sites identified that have defined sustainability attributes. In seeking to justify development of the appeal site now, the appellants have sought to demonstrate that all available alternative non-GB or non-MOL locations have been exhausted. In reply, the Council submitted evidence to suggest that since completion of the NLP report, further development opportunities have arisen that avoid the need to develop MOL land. Also relevant is a reduction in the annual housing targets as a result of the draft consultation on housing provision, produced by the Greater London Authority (GLA). This indicates that between 2006 and 2016 the target should be reduced from 573 to 485 dwellings per annum.

The relevant Bromley UDP policy is Policy G2. The relevant part of Policy G2 reads:

[9]I comment that paragraph 10.4 is not within the evidence before me. However, Mr Jones's proof does set out paragraph 4.46 of the NLP report, which reads:
"On the basis of this assessment, it is considered that should the Council still not be able to identify sufficient suitable housing sites to accommodate the identified shortfall in housing provision then, subject to there being no sequentially preferable sites available, the Council should reconsider the potential of 91-117 Copers Cope Rode for allocation for housing development, ..."
This may also be of significance to the Inspector’s reasoning .

The Inspector recorded at paragraph 6 of his decision letter that:

[10]The Inspector continues:16. Table 3 attached to the Statement of Common Ground is derived from the Council's Annual Monitoring Report (AMR) dated December 2005 but assumes the reduced annual target. It shows a surplus in completions from 2006 to 2010-11, followed by an increasing deficit up to 2016, when the cumulative shortfall would be 952 units. That figure takes no account of the existing agreed deficit of 1522 dwellings in 2006.17. I understand that the anticipated reduction in the level of completions below the target after 2011 is a result of the difficulty of predicting "windfall" sites which may come forward. However, there is nothing to suggest that the level of "windfall" sites will vary greatly from that in earlier years. I also understand that some improvement may occur as a result of the Bromley Area Action Plan (BAAP), now out for consultation, which could facilitate increased densities in the town centres. I consider that would be unlikely to lead to the provision of many family dwellings with gardens, which is where the Council agree the greatest demand lies; and, given the evidence of present and historical need, I am wary of giving a great deal of weight to a proposal that is still the subject of consultation. 18.To satisfy the reduced target and meet the existing shortfall would require significant additional annual completions of more than 240 on top of the 485 required in each of the remaining years to 2016. Only in one recent year, 2001/2, was a figure of that magnitude exceeded. For the current year 2006/7, the AMR for 2004/05 anticipates only 642 completions. I appreciate that the housing completions trajectory figures for 2005/6 submitted at the Inquiry indicate a much higher number of completions in 2006/7, of 1043, dropping to 830, 839, 709 and 522 in subsequent years. There is no doubt these figures, if accurate, would represent a dramatic improvement. Nevertheless, even taking them into account, a significant shortfall is still predicted in 2016 of about 540 dwellings. The draft table indicates that 950 units included in the anticipated surge arise from the BAAP sites, spread over 10 years. I acknowledge that that figure may increase, but the BAAP is not a firm expectation. For this reason, I cannot give the draft 2005/06 housing completions trajectory substantial weight. 19. I conclude that there is little evidence to show that the true extent of the shortfall in 2016 is likely to be significantly smaller than is reflected in the existing AMR. The appeal development would provide 39 dwellings which would make a meaningful contribution to reducing the deficit in housing supply. Whilst I understand that once an area of MOL is developed there is no going back, the weak supply of housing elsewhere could constitute the very special circumstances to justify removing the appeal site from MOL, if the impact is not clearly outweighed by other harm."[11]The Inspector then turned to consider the character and appearance of the appeal site and compared it favourably to a site at Worsley Bridge Road which was in the same general area of MOL but had been allocated for development for housing in the UDP. (Paragraphs 20 to 25)[12]In paragraph 26 the Inspector considered the 1987 appeal decision in relation to the appeal site. He said. "The inspector in that case observed that notwithstanding the degree of separation of the site from the rest of the MOL the loss of the appeal site to housing would detract from its character; and combined with other potential schemes, could whittle it away. I do not disagree with that analysis. However the continuing and increasing need for housing land overarches the years since. It has led to the release of MOL land at Worsley Bridge Road. Whilst I agree that whittling away MOL would be counter to the purpose at the heart of LoP and UDP policy, there are strong reasons to suppose that it would be very unlikely that any other housing sites apart from these two are likely to be found in MOL in Bromley, particularly as a comprehensive and searching sequential analysis has now been done. The Council has decided that the impact on MOL at Worsley Bridge Road is acceptable and I find little in principle to distinguish that case from the appeal proposal and some advantages in terms of visibility. In my view, the impact on the character and appearance of the MOL and the surrounding area in this case would be limited. I conclude that the lack of suitable housing land outweighs the harm that would occur and that a departure from the MOL protection policies of the LoP and the UDP could be justified, depending on assessment of any other harm that there may be."[13]The Inspector went on to consider other possible harm but found that there was none. His conclusion was:
"42. The appellants have demonstrated that there is a significant and historical shortfall in housing completions in Bromley which, having regard to the sequential site analysis carried out and the evidence presented at the Inquiry, is extremely unlikely to be made good within the plan period up to 2016. Although inappropriate in MOL, and harmful to a limited extent to the character and appearance of the MOL and Green Chain, the proposed development would make a meaningful and useful contribution to meeting that shortfall. In my view, the release of this site, which has identifiable and defendable boundaries and is on the edge of the MOL, is justified by these very special circumstances which would in this case clearly outweigh the disadvantages identified. For the reasons given above and having regard to all other matters raised I conclude that the appeal should be allowed."
He allowed the appeal and granted outline planning permission.[14]For the claimant Council Mr Stephen Whale submitted that the inspector had not applied section 38(6) of the Planning and Compulsory Purchase Act 2004 properly or at all. For the appeal to be allowed, the section 38 (6) "material considerations" had to be a factor, or factors, not already taken into account and reflected in the UDP and the decision to adopt it. When the Inspector carried out the balancing exercise, weighing very special circumstances against harm, he would go wrong in law if the circumstances he found to be very special were no more than the circumstances already assessed in the process of adopting the UDP. He was supported in that submission by Mr Christopher Boyle, for the interested party, the North Copers Cope Road Action Group. Mr Whale and Mr Boyle argued that there was very little difference between the information on housing supply that was put before the inspector at the inquiry and the information on housing supply that had already been considered by the local plan inspector and the Council in the process of adopting the UDP and setting the boundaries of the MOL. The adoption of the UDP took place in July 2006. The evidence before the Inspector was produced in mid-October 2006, a month before the inquiry.[15]I was taken to various parts of the evidence and the submissions made to the Inspector by the Council, the Action Group and the appellants. I particularly note the "statement of common ground" and the four tables attached to the back of it. Tables 1A and 1B compared actual performance against targets. Table 1B was titled "PROVISION OF ADDITIONAL HOUSING ACTUAL 2001 -- 06". I was referred to the column for completions and the note that makes it plain that it is at least partly compiled from monitoring records that post-dated the UDP process. Similarly, table 3 "PROVISION OF ADDITIONAL HOUSING FORECAST 2006 -- 2016 (REVISED GLA TARGETS)" was evidently based upon some information that was not part of the UDP process. For that reason Mr Whale readily conceded that he had overstated the position when he submitted to the inspector that all four tables were produced prior to the adoption of the 2006 UDP.[16]Mr Paul Brown, for the Secretary of State, submitted that section 38 (6) was at the heart of the Inspector's decision, as it was of every planning decision. It was not necessary for him to refer to it specifically. It is evident from the decision letter that his approach was entirely consistent with the statute. There was no authority for the proposition that the Inspector could only take into account as material considerations factors that were additional to and not taken into account in the decision to adopt the UDP. The Inspector had considered the extent to which the most recent evidence showed that the UDP was on track to meet the identified shortfall. Mr Garrett Byrne, for Castlefort Properties Ltd, the second defendant, adopted Mr Brown's arguments and emphasised that it was factually wrong to suppose that the Inspector had no new information before him in respect of the housing shortfall. The tables of housing forecasts in the Statement of Common Ground were agreed and had not been available prior to the adoption of the UDP; the figures were taken partly from the Annual Monitoring Report of December 2005, which was taken into consideration in the plan process, and partly from unpublished figures provided to the second defendant by the Council on the 6th of October 2006. So the evidence of the housing shortfall was different. The Inspector was entitled to conclude that it already showed that the UDP would not manage to meet the shortfall.[17]I turn first to consider the law. Section 38 (6) of the Planning and Compulsory Purchase Act 2004, provides:
"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." 23. "
Moreover the section has not touched the well established distinction in principle between those matters which are properly within the jurisdiction of the decision maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell LJ observed in Loup v. Secretary of State for the Environment (1995) 71 P&CR 175 at p 186 "what section 54A does not do is to tell the decision maker what weight to accord either to the development plan or to other material considerations". Those matters are left to the decision maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues."[18]It is agreed by counsel that Mr Brown appears to be right to submit that there is no direct authority for the proposition that in order to be a "material" consideration, capable of indicating a determination other than in accordance with the development plan, the consideration in question must not have been one that was taken into account in the adoption of that development plan. But I suspect that the reason for that may be because it is a proposition that is sufficiently obvious not to require any authority. In my judgment it would strike at the basic principle of the primacy of the development plan if it were open to a decision maker to refuse to decide in accordance with the development plan on the basis of a consideration that had been fully taken into account in the decision to adopt that plan. As Lord Clyde said in the passage quoted, the legislation "has introduced a requirement with which the decision maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision maker could be faulted were he to fail to give effect to that requirement." While the weighing of material considerations is a matter for the decision maker, the re-weighing of the same material considerations that have been weighed already in the plan process is not, it seems to me, the exercise the statute contemplated by the words “unless material considerations indicate otherwise”. If it is evident that a consideration had indeed been taken into account in the adoption of the plan, it seems to me that no reasonable Inspector could properly conclude that the identical consideration was material or, alternatively, if it was material, that any weight should be put upon it. To take an example relevant to this case; suppose the Council, on the basis of the need to meet a shortfall in housing provision, judged that site A, rather than site B, be taken out of the MOL, allocated for housing and drafted the MOL boundaries in the development plan accordingly. In my judgment the decision maker would go wrong in law if, on the basis of an unchanged need, he were to decide that site B rather than site A was better allocated for housing. The decision maker would be substituting his own planning judgment for that reflected in the development plan. He would be failing to recognise the priority required by statute to be given to that plan. But, of course, that all depends upon the considerations being the same as those already taken into account. Once a circumstance has changed and the consideration is not quite the same, or there are other new relevant circumstances to take into account, the significance or otherwise of the differences becomes a matter of the Inspector's judgment with which the court will not interfere unless the judgment is Wednesbury unreasonable. Of course the Inspector may also go wrong in law if he fails to give his mind to whether or not the consideration that is said to be "material" really is significantly different from one that has already been taken into account in the adoption of the plan.[19]Applying those principles to the decision of the Inspector in this case, I observe that no criticism is made of the way that the Inspector sets out the planning policy or records the evidence. Under the heading of ‘housing supply’, in paragraph 15, the parties focussed upon what has changed. The Inspector says "…in seeking to justify development of the appeal site now, the appellants have sought to demonstrate that all available non-GB or non-MOL locations have been exhausted". In the next sentence he records that the Council's reply also looked to what had changed. In paragraphs 16 to 18 the Inspector considers the way in which the figures may have altered since the annual monitoring report dated December 2005. He does so in a way that is not challenged. I note that the completions in the 2006-2010 period would have included the Worsley Bridge Road site because the AMR assumed that sites identified in the UDP, such as Worsley Bridge Road, would become available during that period. (Mr Byrne’s submissions, Paragraph 15.Bundle page 49)The parties at the Inquiry would have been well aware of that. Thus far his approach is beyond criticism.[20]The Inspector’s conclusion on the figures is “that there is little evidence to show that the true extent of the shortfall in 2016 is likely to be significantly smaller than is reflected in the existing AMR.” (By ‘the existing AMR’ he must be referring to the December 2005 AMR, with reduced annual target, which is the basis of Table 3.) It might be said that he concludes that the situation has not improved; he does not conclude that it has got worse. If it has simply not improved it might be argued that the situation remains as it was at the time the plan was adopted and the plan should prevail.[21]In my view, that does not follow. On the basis of the evidence it seems to me that what the Inspector was doing was following the approach set out in paragraph 4.46 of the NLP study. That is to say, he was concluding that the identified shortfall in housing provision was no less than it formerly had been and there were no sequentially preferable sites available. No comfort was to be derived from work on the BAAP. The Worsley Bridge Road site would soon be coming forward. The Inspector considered the potential of the appeal site and found that it was, at least, no worse than the Worsley Bridge Road site. Given a continuing serious shortfall and the contemplation in the work leading to the UDP that further sites, and the appeal site in particular, would need to be released if the shortfall persisted, the conclusion that very special circumstances for the release of the appeal site existed was justified. Those circumstances were not exactly the same as those that had informed the UDP. Things had moved on to a degree in the intervening months, if only in the sense that the shortfall had not reduced and the need was becoming more urgent with time. That the Inspector thought the situation was becoming more urgent appears from his words “the appellants have demonstrated that there is a significant and historical shortfall in housing completions in Bromley which, having regard to the sequential site analysis carried out and the evidence presented at the Inquiry, is extremely unlikely to be made good within the plan period up to 2016.”(My underlining. See first sentence of paragraph 42.) He had already found “strong reasons to suppose that it would be very unlikely that any other housing sites apart from these two are likely to be found in the MOL.” (Paragraph 26.) His reasoning does not, in my judgement, offend the principle that primacy must be given to the development plan. Those are judgements open to him on the evidence and involved no error of law.[22]It is possible that the Inspector might have made his reasoning more explicit and explained more directly what it was about the shortfall he identified that amounted to very special circumstances requiring the immediate release of the site, in contrast to the shortfall identified at the time of the adoption of the UDP, a few months earlier, which did not. But that is not the test. The test is whether a party well aware of the issues involved and the arguments advanced, reading the decision letter in a straightforward manner, would understand why the matter was decided as it was, what conclusions were reached on the “principal important controversial issues” and how the issue of the primacy of the recent UDP was resolved. In my judgement such a person would understand those things and the reasons are therefore adequate. The application is dismissed.

Cited in 1 later judgment