Calderdale Metropolitan Borough Council v Secretary of State for Communities & Local Government & Anor [2009] EWHC 2986 (Admin)

Case No CO/1712/2009[2009] EWHC 2986 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court
The Courthouse
1 Oxford Row
Venue Leeds LS1 3BGDate 20 th November 2009
Before
HIS HONOUR JUDGE S P GRENFELL
Between
CALDERDALE METROPOLITAN BOROUGH COUNCILClaimantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantLEEDS AND LONDON PROPERTIES LTDInterested Party
John Hunter (instructed by Bernadette Livesey, solicitor) for claimantTim Buley (instructed by Treasury Solicitor) for Secretary of StateThe Interested Party attended through its Managing Director, Mr Rowell, who did not make representationsHearing Hearing date: 21 st October 2009
JudgmentHis Honour Judge Grenfell:
[1]Walsden is a small village community close to Todmorden in West Yorkshire. It has some greenfield land on which a developer wants to build some dwellings, but the local planning authority refused planning permission. On appeal the Inspector granted the permission.[2]The Claimant, Calderdale Metropolitan Borough Council, (‘Calderdale’), seeks an order pursuant to s288 of the Town and Country Planning Act 1990 (‘TCPA 1990’) quashing the decision of the Secretary of State, through his appointed planning inspector, Mr Ghafoor, to grant the permission to the Interested Party, Leeds and London Properties Ltd (‘the Developer’) for a development comprising the erection of 21 dwellings (“the Development”) on land off Hollins Road, Walsden, Todmorden (“the Site”), within the urban area of Walsden which is situated within a rural part of the Borough.[3]The grounds of claim that remain in issue are: on the part of the Inspector i) Failure to understand or to apply s38(6) Planning and Compulsory Purchase Act 2004 (‘PCPA 2004’) a) Failure to understand or to apply his duty under s38(6) b) Failure to address Calderdale’s principal argument as to why there could not be compliance with the relevant Development Plan ii) Failure to understand or apply planning policy on housing land a) Conflation of 5 year “deliverable” supply and 15 year “developable” supply b) Failure to raise 15 year supply as an issue with the parties c) Failure to have regard to national and regional policy in suggesting the desirability of an “abundant” supply of housing iii) Failure to understand or to apply the affordable housing policy[4]Thus it is argued that the decision was outside the powers conferred by the TCPA 1990; that the procedural requirements have not been complied with, thereby substantially prejudicing Calderdale’s interests.[5]The Secretary of State applied for and was given permission to take part in the hearing notwithstanding the fact that no acknowledgement of service had been filed. The grounds of defence are apparent from counsel’s skeleton argument. The Developer attended the hearing through its Managing Director, Mr Rowell, but he did not wish to take part, nor did he need to, because counsel for the Secretary of State, Mr Buley, argued comprehensively in support of the Inspector’s decision.[6]Calderdale’s planning officers had recommended that the application should be refused. The planning committee followed this recommendation and the decision notice refusing permission was issued on 22nd November 2007.[7]The Developer appealed to the Secretary of State under s78 of the TCPA 1990. The appeal was heard before Mr Ghafoor at a public inquiry in Halifax on 28th and 29th October 2008.[8]The Secretary of State supports the inspector’s decision on the basis that Calderdale’s criticisms of his appeal decision are unfounded.[9]The Appeal Decision, dated 15th January 2009, was that the Inspector allowed the appeal and granted planning permission “for erection of 21 residential dwellings comprising two and three bedroom terraced properties with associated car parking around courtyards at land off Hollins Road.”[10]The land is described thus in the Appeal Decision paragraph 10 “The appeal site lies within the urban area of Walsden which is situated within a rural part of the Borough. The site extends some 0.8 hectares and is located between Hollins Road to the east and Rochdale Canal to the west. Housing, commercial and industrial buildings exist to the west, and there are dwellings to the eastern side of Hollins Road. The site slopes downwards from Hollins Road towards the Canal.”[11]The background facts are clearly stated in paragraph 6:
“In 1992, planning permission was granted on appeal for the erection of 21 dwellings all for the provision of low-cost housing. The appellant purchased the site around 1994. As the development had not commenced the 1997 application was submitted and determined in accordance with the then Calderdale Unitary Development Plan (1997). The Council resolved to permit the development subject to a section 106 agreement to provide 6 affordable houses as this more equitable. However, despite efforts on both sides no obligation was signed between 4 December 1997 and the Council’s decision on 22 November 2007.”
[12]The inspector directed himself in the following terms (paragraphs 7 and 8):
“7. Section 38 (6) of the Planning and Compulsory Purchase Act (2004) requires me to have regard to the development plan and any other material considerations. The plan includes the Regional Spatial Strategy (RSS) for Yorkshire and the Humber 2008. RSS policy H2 relates to managing and stepping up the supply and delivery of housing and H4 to affordable housing. In the Statement of Common Ground, a number of policies from the Replacement Calderdale Unitary Development Plan (the UDP) have been agreed as relevant, but the Council has only cited policies H2 and H9 in its decision. “8. H2 defines primary housing areas in the main settlements. Whilst the policy is permissive of residential development on brownfield land, it states that housing on vacant land not previously-developed will be assessed against other relevant policies. H9 relates to non-allocated sites and it states that proposals for development on greenfields will not be permitted. Also relevant is H13 which seeks to ensure affordable housing and the Council’s Supplementary Planning Document (SPD) 2008, adopted after formal public consultation, on the provision of affordable housing. I will also refer to Planning Policy Statement (PPS) 1: Delivering Sustainable Development and PPS3: Housing and Planning Policy Guidance (PPG) 17: Planning for Open Space, Sport and Recreation and PPG14: Development on Unstable Land: landslides and planning.”
[13]The inspector defined the main issue in paragraph 9:
“The appeal raises one main issue and that is whether or not the proposal would conflict with local and national policies, designed to give priority to the use of previously developed land (‘pdl’).”
[14]Ground 1: Failure to understand or to apply s38(6) Planning and Compulsory Purchase Act 2004 (‘PCPA 2004’)[15]If the claimant is right on the section 38(6) point then it is common ground that the decision has to be quashed.[16]The subsection reads:
“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.”
[17]The relevant part of the development plan is to be found in ‘Policy H9’ “Non-Allocated Sites … “Proposals for residential development on unallocated greenfield land will not be permitted.”[18]It is common ground that the land in question is unallocated greenfield.[19]On the face of paragraph 7 of the Appeal Decision and read in isolation, the inspector appears to have misdirected himself, by merely having regard to the relevant development plan as opposed to regarding H9 as a presumption in favour of refusal unless material considerations indicated otherwise.[20]Section 38(6) in its various guises has been considered authoritatively.[21]In City of Edinburgh Council v the Secretary of State for Scotland [1997] 1 WLR 1447, Lord Clyde (with whom the remainder of their Lordships agreed) said this at 1460 as to the approach to be adopted under the Scottish equivalent provision:
“In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.”
[22]Mr Hunter, counsel for Calderdale, relies on the decision of Mr David Keene QC (as he then was) in R v Canterbury City Council and Robert Brett & Sons Ltd (1994) 68 P & CR 171 (otherwise known as the Springimage case). That was a case in which the planning officer in his report to the planning committee said “Section 54A of the 1990 Planning Act requires local authorities to have regard to the provisions of the Development Plan (in this case the 1985 Canterbury City Local Plan) in determining planning applications, unless material considerations indicate otherwise. Notwithstanding the fact that the site is allocated for industrial use, I consider that this is a situation where “material considerations” do indeed indicate otherwise.” (my italics).[23]Mr David Keene QC accepted Counsel’s submission “that the committee was misinformed by the director of planning as to the approach to be adopted under section 54A and that it is to be inferred that the committee itself adopted the same mistaken approach.” and went on to say “Thus it misdirected itself in law. [Counsel] relies on that paragraph in the report to committee in which it is said that section 54A requires local authorities “to have regard to the provisions of the Development Plan” unless material considerations indicate otherwise. That, he says and in my view he is clearly right, misrepresents section 54A which requires local planning authorities to determine applications in accordance with the development plan unless material considerations indicate otherwise, and not merely to have regard to them.” “Thus it misdirected itself in law. [Counsel] relies on that paragraph in the report to committee in which it is said that section 54A requires local authorities “to have regard to the provisions of the Development Plan” unless material considerations indicate otherwise. That, he says and in my view he is clearly right, misrepresents section 54A which requires local planning authorities to determine applications in accordance with the development plan unless material considerations indicate otherwise, and not merely to have regard to them.”[24]Counsel had submitted, as has Mr Hunter in the present case in respect of paragraph 7 of the Appeal Decision, that one of the misleading aspects of that advice to the committee had been that it failed to indicate the greater importance to be attached to the development plan under section 54A, “reducing the plan merely to a consideration to which regard is to be had – in effect an ordinary section 70(2) consideration.”[25]The Deputy Judge accepted the proposition that “there was no need for the decision-maker to refer expressly to section 54A, so long as the approach adopted was in fact consistent with the requirements of that section and “the need to read the decision letter as a whole when applying such a test.”[26]Nevertheless, the Deputy Judge concluded (p10) “There can be no doubt that the passage complained of in the report misstates the approach embodied in that section. There are two obligations on a local planning authority under the current legislation when the development plan contains provisions material to an application before it: first, under section 70(2) it must have regard to those material provisions, and there is no escape from that duty. It need not necessarily follow them, but it must have regard to them. Secondly, by virtue of section 54A, it must make its determination in accordance with the plan unless material considerations indicate otherwise. The deficiency in the officer's report in the present case is that it conflates the two requirements and, in so doing, distorts both of them. To say that section 54A requires local authorities to have regard to the provisions of the development plan, unless material considerations indicate otherwise, misstates both obligations.”[27]Mr Hunter submits that the Inspector in the present case has done just that.[28]Mr Buley accepts that, on the authority of the Springimage case, for an Inspector merely to have regard to the relevant development plan unless material considerations indicate otherwise would be an erroneous approach in law. However, he contrasts the present case where the Inspector goes through the reasoning and deals with a whole range of general matters. He argues that the Inspector has not said anything wrong about the law; rather he has just not said something about the law he might have said; that it is right to look at the decision as a whole and to conclude from it whether or not he took the right approach; that, in spite of one loose sentence that was not in itself incorrect, it is clear from the decision as a whole that he applied the correct test.[29]He is correct that the factors in the Springimage case were very different to the present case. Nevertheless, the principles that can be derived from that case, in my judgment, are clear and are derived from the equally clear wording of section 38(6). Where the relevant development plan contains, as here, an unqualified prohibition of residential development on greenfield unallocated land, then section 38(6) raises a presumption in favour of that prohibition, which can only be displaced by material considerations that indicate otherwise.[30]There are two factors which lend some support to Mr Buley’s submission that the Inspector applied the correct constraint to his decision making process. First, the terms and restrictive nature of section 38(6) were made clear in the closing submissions of the appellant and Calderdale, although in one sense that does make it the more difficult to understand why he then went on to misstate the test. Second, the Inspector made his understanding clear that H9 would be breached by the grant of planning permission, so he appears to have understood, albeit somewhat loosely stated, that he was bound by its terms unless material considerations indicated otherwise.[31]In my judgment, however, those factors alone are not sufficient. The problem with paragraph 7 of the Appeal Decision is that the Inspector misstated his approach and the test to be applied. Mr Buley’s defence of the decision taken as a whole requires the reader to conclude that in spite of that misstatement, nevertheless, he must have adopted the correct approach and test. That would be a legitimate approach for me to take. The Inspector’s reasoning taken as a whole, I accept, amounted to a discussion of ‘other material considerations’ which for this purpose I shall regard as permissible. The recurring theme in the Decision is a balancing exercise of relevant considerations and the need to retain land designated as greenfield as stated in H9.[32]Whilst it would be wrong to dissect the Appeal Decision as if it were a legal document or statute, the wording of the decision is nevertheless capable of illustrating the thinking process of the decision maker. In this respect, Paragraphs 14 and 20 are illustrative.[33]The Inspector was right when, in the context of concerns about the use of greenfield over brownfield land, he said at paragraph 14 “… the RSS requires 65% of new housing on pdl, but this does not mean that all proposals for housing on greenfield sites should be refused.” he goes on to say “In cross-examination, the Council’s witness recognised that PPS3 does not preclude development on suitable greenfield sites. The UDP Inspector’s report refers to the unnecessary release of large-scale greenfield sites, but I find that the appeal site is not located on an urban edge, is surrounded by built development and is located within a housing area. Whilst an undeveloped site, I agree with the appellant that there are other policies and considerations that should be taken into account.”[34]In paragraph 19 he says “…In any event, I consider that other material considerations have been substantially demonstrated in favour of the development.” and in paragraph 20 “Whilst the development would not strictly satisfy policy H9, I find that the proposal would comply with other UDP policies including H13 and RSS policies H2 and H4. I conclude that the development would not materially undermine local policies designed to give priority to the use of pdl because of the planning benefits of the scheme and it would represent an efficient use of land within an urban area. The proposal satisfies PPS1 and PPS3.”[35]It is necessary to examine whether the decision gives sufficient or any weight to H9 itself other than stating the obvious that any grant of planning permission would represent a breach. The relationship, as between the prohibitive terms of H9 and the other material considerations which the Inspector took into account, was plainly crucial to his decision. What is absent, however, I accept, is any discussion as to the primacy of H9 in the circumstances of this proposed greenfield site, in other words why it might be important to retain this greenfield site and why the other material considerations militated against that primacy in this instance.[36]Mr Buley is right that, when the Decision is read as a whole, it can be seen that the Inspector made findings in respect of the relevant greenfield land which he balanced against the various other considerations. In my view, however, it amounts to no more than stating that it was surrounded by building and was located within a housing area. In fact those are no more than possible ‘other considerations’. Nowhere is there reference to the importance or primacy of retaining greenfield land where other considerations do not indicate otherwise.[37]Of course, the way in which the Inspector approached his findings is entirely consistent with the test that he outlined in paragraph 7 of his Decision, that is, that he should take into account H9 rather than regarding it, as he should have, as a presumption only to be displaced by sufficient other considerations.[38]Paragraph 14 comes closest to a discussion of the conflicting interest, but once again the term ‘should be taken into account’ indicates a misunderstanding of the need for the other considerations effectively to override the prohibition in H9. In other words, there is every indication, even reading the Decision as a whole, that the proper test was not applied as to whether the prohibition contained in H9 was displaced by other material considerations; rather, that the prohibition was merely taken into account along with those considerations.[39]I do not regard Mr Hunter’s submission to this effect to be an over legalistic approach, given the fundamental misdirection that the Inspector gave to himself and, which, in my judgment, is reflected through the Decision itself.[40]The problem, which both counsel recognise, is that once it is clear that the misdirection affects the whole Decision, it is far from clear whether, had the Inspector properly directed himself as to the test under section 38(6), he would have reached a similar conclusion. This is particularly so in the light of his reference in the Costs Decision to his substantive decision as having been “finely balanced”.[41]In my judgment, Ground 1 succeeds and for that reason alone I grant the application to quash the decision.[42]Whilst my decision on Ground 1 is sufficient to determine this application, it is right that that I should briefly address the remaining two grounds.[43]Ground 2: failure to understand or apply planning policy on housing land[44]The Inspector deals with this consideration at paragraph 11 of his Decision in which he said:
“The latest monitoring information suggests that a 5-year supply of deliverable land for housing exists. These developments include those with the benefit of permission, under construction and allocated in the UDP, but there are no specific details of the sites and what stage they have reached. I find that both the written and oral evidence does not demonstrate that sufficient and suitable land is available and deliverable to achieve the Borough’s housing objectives for at least 15 years in accordance with PPS3. In my view, the supply of deliverable housing land for the 5-year period does not necessarily mean that these figures should be treated as a ceiling which cannot be exceeded.”
[45]Later at Paragraph 16 he said “I am not convinced that Walsden has an abundant supply of deliverable housing sites in the longer-term, which would meet demand for housing.”[46]PPS3, which replaced PPG3, states on ‘Effective Use of Land’ “40. A key objective is that Local Planning Authorities should continue to make effective use of land by re-using land that has been previously developed. “54. Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years. To be considered deliverable, sites should, at the point of adoption of the relevant Local Development Document: – Be Available – the site is available now. – Be Suitable – the site offers a suitable location for development now and would contribute to the creation of sustainable, mixed communities. – Be Achievable – there is a reasonable prospect that housing will be delivered on the site within five years. “55. Local Planning Authorities should also: – Identify a further supply of specific, developable sites for years 6-10 and, where possible, for years 11-15.Where it is not possible to identify specific sites for years 11-15, broad locations for future growth should be indicated. – Linked to above, identify those strategic sites which are critical to the delivery of the housing strategy over the plan period. – Show broad locations on a key diagram and locations of specific sites on a proposals map. – Illustrate the expected rate of housing delivery through a housing trajectory for the plan period. “56. To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available for, and could be developed at the point envisaged. “57. Once identified, the supply of land should be managed in a way that ensures that a continuous five year supply of deliverable sites is maintained ie at least enough sites to deliver the housing requirements over the next five years of the housing trajectory.”[47]The relevant parts of the RSS are as follows: “POLICY H2: Managing and stepping up the supply and delivery of housing “To support the step–up in the delivery of new homes required by policy H1 and to ensure that new homes are in locations that accord with the Plan’s Core Approach and Sub-Area Policies: “B 5. Adopting a flexible approach to delivery by not treating housing figures as ceilings whilst ensuring that development is focussed on locations that deliver the Plan’s Core Approach and Sub-Area policies “12.18 LDFs Local Development Frameworks will need to make provision for continuous delivery of housing for at least 15 years from the date of their adoption in line with PPS3. “12.23 Greenfield site releases can in the right circumstances support the transformation approach, for example by linking their release to bringing forward brownfield sites or investing in regeneration schemes that will improve the attractiveness of the wider area in which the greenfield sites are located. “POLICY H4: The provision of affordable housing “A The Region needs to increase its provision of affordable housing. “12.33 The planning system has a key role in delivering affordable housing through the allocation of sites for development and the use of planning obligations or planning conditions to ensure appropriate proportions of affordable housing where there is a demonstrable need. In view of the worsening affordability in the region, local authorities should give early priority to providing more affordable housing through the planning system drawing their evidence from Strategic Housing Market Assessments and other more detailed local assessments.[48]In the light of this Mr Hunter submits that the Inspector confused the need for a Local Authority to have a supply of deliverable housing over 5 years and the need to identify developable sites for providing housing over years 6 to 15. Further, he complains that the Inspector relied too much on what he saw for himself on site, without giving the parties, in particular, Calderdale, an opportunity to make appropriate representations which could have amounted to an answer to his observations; that he did not give Calderdale the opportunity of ‘a fair crack of the whip’ to disabuse him of his misconceptions; that the use of the term ‘abundant’ indicated a misunderstanding of policy.[49]Mr Buley submits that all the Inspector was doing was making an overall observation in respect of the housing land availability; that at most his reasoning on what was a sub issue just amounts to a discussion of one aspect of the supply of housing land in the area; that the use of the word ‘abundant’ is not to be regarded as a term of art but merely a figure of speech; that judged in the round his reasoning is compliant; that the Inspector’s approach was fundamentally different to a breach of natural justice.[50]In these respects, I do consider that Mr Hunter’s criticisms of the Inspector’s reasoning are over legalistic. Whilst strictly his analysis of that reasoning is correct, I am not convinced that it betrays a failure on the part of the Inspector to understand the policies contained in PPS3 and the RSS. Nevertheless, nothing in the Decision should be taken as an interpretation of PPS3 that is any sense different from the plain distinction between deliverable and developable housing over years 1 to 5, 6 to 10 and 11 to 15. Further, having considered the very full submissions that were made to the Inspector on behalf of Calderdale, I do not think that, because he referred to observations of his own or because he failed to invite further submissions, he breached the rules of natural justice. There are limits to the scope for seeking further representations which have to be kept within proportionate bounds. I do not believe the Inspector exceeded those bounds in this instance.[51]Ground 3: failure to understand or apply the affordable housing policy[52]In paragraphs 15 and 17 the Inspector indicated his approach to affordable housing. “15. UDP policy H13 sets out the Council’s approach to affordable housing and RSS policy H4 requires local targets to be set. At the Inquiry, the Council told me that affordable housing policies would apply to any residential scheme providing 15 dwellings or more. Applying the Council’s own SPD the proposal would exceed the minimum 20% required on this site, but there is a lack of evidence to demonstrate that the Borough is in no need of any additional affordable housing especially in rural locations. “17. In my view, the development would provide high quality homes in this rural location, widening the opportunities of home ownership in the area and offering greater flexibility. The Council recognises that there is some need for affordable homes in Walsden. However, I take the view that the provision of affordable housing on this site significantly goes in favour of the scheme due to the site’s urban and sustainable location and its close proximity to local facilities and public transportation. It would provide a good mix of 2 and 3-bed terraced properties that would integrate and blend in with their surroundings.”[53]The relevant parts of the Replacement Calderdale UDP H13 read:
“Planning applications which include proposals for affordable housing will be assessed against the following criteria:- vii. the affordable housing is provided to cater for the housing need in the District; viii. …; ix. …; x. …; xi. the proposals are consistent with other UDP policies.”
[54]Mr Hunter’s argument is that H13 shows that it is necessary to look at other policies; that, therefore, overall a breach of H9 is going to be more important in that context. Further, he submits that it was not fair or proper to require Calderdale to prove that there was an absence of need for affordable housing when it was for the Developer to prove a need given that Calderdale was relying on this as a ‘material consideration’ to outweigh conflict with the Development Plan and national policy on greenfield as against previously developed land (pdl).[55]I do not consider that in any sense H13 overrides H9. Nor do I consider that in the context of reviewing this Appeal Decision that consideration of the burden of proof is helpful. I agree with Mr Buley that there was no need for the Inspector to say why he attached weight to the need for affordable housing. It is clear from paragraph 12.33 of the RSS that Local Authorities should give early priority to providing more affordable housing. In my view, this was plainly a factor to which the Inspector was entitled to give consideration.[56]In my view, all the Inspector was trying to do in his decision was to consider the general need for affordable housing in the context of H9. It is for this reason that I do not consider that he misunderstood the affordable housing policy. Nor do I consider that this Ground in the end adds anything to my conclusions on Ground 1, because they come back to the fundamental misdirection.[57]In other words and in the context of the Decision as a whole the matters to which I have referred in consideration for Grounds 2 and 3 were material considerations which the Inspector was entitled to take into account.[58]Although Mr Buley demonstrated how in the move from PPG3 to PPS3 there was greater emphasis on demand with less emphasis on greenfield, the fact remains that H9 plainly applied to this planning application and its terms are clear. I do not understand Mr Buley to argue that anything other than a clear prohibition can be read into H9. Nor did the Inspector attempt to do so. The fundamental flaw in his approach under section 38(6), however, as I have already made clear, cannot be cured by reading the Decision as a whole in this instance.[59]Consequential submissions, including those related to costs, may be made in writing or by telephone hearing.