Adams (t/a Strategic Land Partnerships) v Secretary of State for Communities and Local Government & Anor [2009] EWHC 771 (Admin)

[2009] EWHC 771 (Admin)Case No CO/10925/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
And in the matter of s288 of the Town and Country Planning Act 1990
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 th April 2009
Before
HIS HONOUR JUDGE WAKSMAN QC(sitting as a Judge of the High Court)
Between
TERENCE CHARLES ADAMSClaimanttrading asClaimantSTRATEGIC LAND PARTNERSHIPSClaimant(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) CHELTENHAM BOROUGH COUNCILDefendant
John Steel QC (instructed by Sharpe Prichard as agents for Stephens Scown, Solicitors) for the ClaimantSarah-Jane Davies (instructed by the Treasury Solicitor) for First Defendant for The Second Defendant did not appear and was not representedHearing Hearing date: 26 March 2009
JudgmentHis Honour Judge Waksman QC :INTRODUCTION
[1]This is an application, made under s288 of the Town and Country Planning Act 1990, to quash a decision of the Planning Inspector made in a letter dated 3 October 2008 (“the Decision Letter”). By that decision he dismissed the Claimant’s appeal against a refusal of planning permission on the part of the Second Defendant, Cheltenham Borough Council (“the Council”). The Inspector appears by the First Defendant. The Council does not appear but is content to adopt the submissions made by the First Defendant.[2]The site in question is a field lying within an Area of Outstanding Natural Beauty (“AONB”) at the edge of Cheltenham’s urban area, bounded on two sides by residential development. It is indicated by a black star in the plan at p46 of the Bundle.[3]It is common ground that the appeal essentially concerned the resolution of two important but here conflicting policy considerations namely(1) the need to provide more housing in the Cheltenham area where the Council had failed to come even close to its target for housing provision and(2) the need to protect AONBs from development. It is agreed that this entailed a balancing exercise on the part of the Inspector and that he carried out such a balancing exercise in reaching his decision. However, the Claimant contends that the Inspector made what amounted to errors of law in the course of that exercise such that, in their absence, he may well have come to the opposite decision. Hence his decision should be quashed and a new inquiry should be held.[4]The errors of law are said to be constituted by a misinterpretation of the relevant policy, leading to account being taken of irrelevant factors (“the Spatial Vision Point”), and failure to take account of relevant factors (“the Harm Point”). These challenges to the Decision Letter will be set out in more detail following my recital of the facts, the applicable policies and the key parts of the Decision Letter. The upshot of the balancing exercise was to accord priority to the interest in protecting the appeal site, as an AONB, from the significant harm which the Inspector found would result from this development if it went ahead.[5]The proposed development consists of 34 houses of which 40% would be made available as affordable housing. Some details affecting the scheme were agreed by relevant s106 agreements and others would constitute reserved matters in the usual way. The Inspector was thus dealing with matters of principle in respect of this development. the policies Introduction

the policies

[6]The relevant planning policies were promulgated at national, regional, and local level. There was no real dispute between the parties that all of the policies described below had relevance to the appeal. I set them out starting at national level and percolating down. It is necessary to describe them in some detail, both because of the various arguments made and also in order properly to illuminate the competing policy considerations.

PPS 3 November 2006: Housing

[7]This government Planning Policy Statement expressly deals with the delivery of housing. The following provisions are relevant: Strategic housing policy objectives 9. The Government’s key housing policy goal is to ensure that everyone has the opportunity of living in a decent home, which they can afford, in a community where they want to live. To achieve this, the Government is seeking: – To achieve a wide choice of high quality homes, both affordable and market housing, to address the requirements of the community. – To widen opportunities for home ownership and ensure high quality housing for those who cannot afford market housing, in particular those who are vulnerable or in need. – To improve affordability across the housing market, including by increasing the supply of housing. – To create sustainable, inclusive, mixed communities in all areas, both urban and rural. Planning for housing policy objectives 10. These housing policy objectives provide the context for planning for housing through development plans and planning decisions. The specific outcomes that the planning system should deliver are: – High quality housing that is well-designed and built to a high standard. – A mix of housing, both market and affordable, particularly in terms of tenure and price, to support a wide variety of households in all areas, both urban and rural. – A sufficient quantity of housing taking into account need and demand and seeking to improve choice. – Housing developments in suitable locations, which offer a good range of community facilities and with good access to jobs, key services and infrastructure. – A flexible, responsive supply of land – managed in a way that makes efficient and effective use of land, including re-use of previously-developed land, where appropriate. 11. PPS3 sets out policies designed to achieve these outcomes, based upon the following concepts and principles: – Sustainable Development – PPS1 sets out the strategic role of planning in delivering sustainable development. Sustainability Appraisal is a key means of ensuring housing policies help to deliver sustainable development objectives, in particular, seeking to minimise environmental impact, taking account of climate change and flood risk. – Visionary and Strategic Approach– Local Planning Authorities and Regional Planning Bodies will have a key role in defining and communicating the spatial vision for their area, determining their strategy for delivering the vision and joining up planning, housing and wider strategies including economic and community strategies. In accordance with the Local Government White Paper, Local Planning Authorities should take a strategic lead role in their local area, ensuring that Local Development Documents provide a high quality framework for planning for housing delivery. – Market Responsiveness– Local Planning Authorities and Regional Planning Bodies should take into account market information when developing planning for housing policies. In particular, they should have regard to housing market areas11 in developing their spatial plans and these should be set out in the Regional Spatial Strategy. – Collaborative Working …. – Evidence-Based Policy Approach– Local Development Documents and Regional Spatial Strategies policies should be informed by a robust, shared evidence base, in particular, of housing need and demand, through a Strategic Housing Market Assessment and land availability, through a Strategic Housing Land Availability Assessment. – Outcome and Delivery Focus– …. Local Planning Authorities and Regional Planning Bodies should focus, as a priority, on managing the delivery of the key outcomes set out in paragraph 10. 33. In determining the local, sub-regional and regional level of housing provision, Local Planning Authorities and Regional Planning Bodies, working together, should take into account: – Evidence of current and future levels of need and demand for housing and affordability levels based upon:• Local and sub-regional evidence of need and demand, set out in Strategic Housing Market Assessments and other relevant market information such as long term house prices…………. – Local and sub-regional evidence of the availability of suitable land for housing using Strategic Housing Land Availability Assessments and drawing on other relevant Information……….. 54. Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverablesites 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. Determining planning applications 68. Local Planning Authorities should take into consideration the policies set out in Regional Spatial Strategies and Development Plan Documents, as the Development Plan, as well as other material considerations. When making planning decisions for housing developments after 1st April 2007, Local Planning Authorities should have regard to the policies in this statement as material considerations which may supersede the policies in existing Development Plans. 69. In general, in deciding planning applications, Local Planning Authorities should have regard to: – Achieving high quality housing. – Ensuring developments achieve a good mix of housing reflecting the accommodation requirements of specific groups, in particular, families and older people. – The suitability of a site for housing, including its environmental sustainability. – Using land effectively and efficiently. – Ensuring the proposed development is in line with planning for housing objectives, reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider policy objectives eg addressing housing market renewal issues. [my emphasis in bold added] 71. Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69. [my emphasis in bold added] 72. Local Planning Authorities should not refuse applications solely on the grounds of prematurity. [“Prematurity” here meaning the absence of inclusion within a development plan.] Strategic housing policy objectives Planning for housing policy objectives• Local and sub-regional evidence of need and demand, set out in Strategic Housing Market Assessments and other relevant market information such as long term house prices…………. Determining planning applications

PPS 7: Rural Areas

[8]Paragraph (i) of the Government’s Objectives here states that … “Decisions on development proposals should be based on sustainable development principles, ensuring an integrated approach to the consideration of: - social inclusion, recognising the needs of everyone; - effective protection and enhancement of the environment;”[9]Under the rubric of “Nationally designated areas”, paragraphs 21 and 22 provide as follows: Nationally designated areas 21. Nationally designated areas comprising National Parks, the Broads, the New Forest Heritage Area and Areas of Outstanding Natural Beauty (AONB), have been confirmed by the Government as having the highest status of protection in relation to landscape and scenic beauty. The conservation of the natural beauty of the landscape and countryside should therefore be given great weight in planning policies and development control decisions in these areas. The conservation of wildlife and the cultural heritage are important considerations in all these areas. …. As well as reflecting these priorities, planning policies in LDDs and where appropriate, RSS, should also support suitably located and designed development necessary to facilitate the economic and social well-being of these designated areas and their communities, including the provision of adequate housing to meet identified local needs. 22. Major developments should not take place in these designated areas, except in exceptional circumstances. This policy includes major development proposals that raise issues of national significance. Because of the serious impact that major developments may have on these areas of natural beauty, and taking account of the recreational opportunities that they provide, applications for all such developments should be subject to the most rigorous examination. Major development proposals should be demonstrated to be in the public interest before being allowed to proceed. Consideration of such applications should therefore include an assessment of:(i) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;(ii) the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and(iii) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. Nationally designated areas

RPG (“Regional Planning Guidance”) 10

[10]This is the current regional development plan. Under the rubric “Principal Urban Areas” it provides as follows at paragraph 3.10:
“Development to meet future requirements for housing, employment and other uses is unlikely to be met entirely within the PUAs. Where it is not possible to accommodate future growth within the PUAs, the next best option will generally be to locate development adjoining them in urban extensions. Provision needs to be made for well designed new development in urban fringe locations. Low density development, of the type seen in recent decades, will not be acceptable.”

The Emerging Regional Spatial Strategy

[11]RPG 10 is in the course of being superseded by a new Regional Spatial Strategy (“RSS”). This is presently in draft form including changes proposed by the Secretary of State published in July 2008. The Inspector referred to it as the “emerging RSS” and accorded it considerable weight. The parties agree that he was right to do so. I shall refer to it hereafter simply as “the RSS”. Its relevant provisions are as follows: 3.1.1: The core strategy for the region is essentially about responding to and managing expected high levels of growth throughout the regionin the most effective and sustainable way, by concentrating most new development at a number of key regionally and sub-regionally significant centres and then more locally at service centres that will be identified in LDDs 3.1 CSS Policy CSS - The Core Spatial Strategy Across the region, provision will be made to: meet identified housing and community needs; improve connectivity, accessibility and the functional efficiency of places; and enhance economic prosperity within environmental limits. To accommodate and manage growth in the most sustainable way, most new development will be provided for at Strategically Significant Cities and Towns (SSCTs). Provision for more limited development will be made at market and coastal towns and in small towns and villages where this will increase self-containment and promote stronger communities 3.2.2 Development will be managed over the next 20 years to achieve the region’s aims. The approach set out in the Core Spatial Strategy is supported by the Strategic Sustainability Assessment. The most effective way for the RSS to manage growth pressures and contribute to a sustainable future for the region is to provide for most development to in a relatively small number of places that are best placed to deliver those aims - the Strategically Significant Cities and towns (SSCTs). This approach does not mean that the needs of more rural areas, and the many villages and smaller towns will be neglected… 3.3 Development of Strategically Significant Cities and Towns (SSCTs) The RSS identifies 21 cities and towns as places which currently play a critical strategic role regionally or sub-regionally. ..They are also key places in the region with potential to achieve further significant development sustainably. The Strategy is for an increased proportion of new development, particularly housing, to be delivered at these SSCTs. Through this approach, opportunities will be presented for a better balance between job growth and where people choose to live. Policy CSS - The Core Spatial Strategy Across the region, provision will be made to:

improve connectivity, accessibility and the functional efficiency of places; and

[12]Cheltenham is one such SSCT.[13]Paragraph 4.0.1 describes how the spatial strategy will be delivered at sub-regional level on the basis of Housing Market Areas (“HMA’s”). Paragraph 4.0.11 refers to 40 Areas of Search (“AOS”) identified at SSCT’s. Paragraph 4.015 is headed “Revising the Green Belt” and provides that:
“Policies for the HousingMarket Areas incorporate, where relevant, changes to the general extent of the Green Belt. At Bristol, Bath, Cheltenham, Gloucester and South East Dorset, the RSS identifies urban extensions as part of the most sustainable solution for delivering housing and other development. This has required changes to be made to the general extent of the Bristol and Bath, Gloucester and Cheltenham and South East Dorset Green Belts…Where the general extent of the Green Belt is changed, detailed boundaries will be set in the relevant Local Development Frameworks.”
[14]The RSS further provides thus: 4.1.26 While Gloucester and Cheltenham are important economically, there are a range of challenges to realising their economic potential in the future…. in Cheltenham there is evidence that economic growth is being constrained by a lack of both employment and housing land. There are also indications that the town’s current growth sectors will experience a decrease in employment, highlighting a need for greater diversification 4.1.28 The green belt will continue to maintain the separate identities of Cheltenham and Gloucester by keeping land open between them. However, necessary provision for new homes and to fulfil the SSCTs' economic potential cannot be met within the existing urban areas. The most sustainable solution is to provide for urban extensions to the SSCTs, including at five locations that have been subject to a review of the green belt. To address these exceptional circumstances, the RSS makes changes to the general extent of the green belt, removing the designationfrom the areas required to accommodate the proposed urban extensions.[15]In relation specifically to the Cheltenham SSCT paragraph 4.1.33 provides that:
“The north west of Cheltenham provides considerable potential to extend the town in an area not subject to flood risk and other environmental constraints. A substantial extension can deliver a comprehensive mixed-use development. A further Area of Search is identified to the south of Cheltenham. While Bishop's Cleeve is physically detached from Cheltenham, additional homes and job growth would strengthen its existing employment base and service role, enabling it to better serve its population and that of the surrounding area. An Area of Search for 1,000 dwellings is, therefore, identified to the north of Bishop's Cleeve.”
[16]Under paragraph 4.4, Policy HMA 3 it is provided for Cheltenham SSCT that:
“Cheltenham will improve its economic performance and realise its economic potential, while safeguarding the integrity of environmental and habitat designations, by providing for: ……. Provision for sustainable housing growth will comprise: 6,500 new homes within the existing Cheltenham urban area (Cheltenham) 1,300 new homes at Area of Search 3E to the south of Cheltenham (600 in Cheltenham and 700 in Tewkesbury) 5,000 new homes at Area of Search 3F to the north of Cheltenham (1,000 in Cheltenham and 4,000 in Tewkesbury) 1,000 new homes at Area of Search 3G to the north of Bishop’s Cleeve (Tewkesbury)” 6,500 new homes within the existing Cheltenham urban area (Cheltenham) 1,300 new homes at Area of Search 3E to the south of Cheltenham (600 in Cheltenham and 700 in Tewkesbury) 5,000 new homes at Area of Search 3F to the north of Cheltenham (1,000 in Cheltenham and 4,000 in Tewkesbury) 1,000 new homes at Area of Search 3G to the north of Bishop’s Cleeve (Tewkesbury)”
[17]And under 4.16,HD1:
“Sub-Regional Distribution of Housing 2006-2026: Managing and Stepping Up Supply Provision should be made across the HMAs and LPA areas to deliver the total number of dwellings in the periods between 2006-2016 and 2016-2026 as set out in Tables 4.1 and 4.2. To support the required step-up in the delivery of new homes and to ensure that new homes are in locations that accord with the Core Spatial Strategy; Local Planning Authorities should complete Strategic Housing Land Availability Assessments (SHLAAs) as evidence for LDFs Local Planning Authorities should identify and manage the release of land to maintain the momentum of housing delivery to meet the region's objectives for places by; Identifying sites and contributions from areas of planned change in LDFs (based on Strategic Housing Land Availability Assessments and other evidence) to ensure a 15 year supply of land for housing, including a 5 year supply of specific, deliverable sites Where needed, identifying broad locations in LDFs so that these locations can be included in the 11-15 year supply and be further tested before sites are identified Co-ordinating the release of housing land with the necessary improvement to and/or provision of infrastructure Adopting a flexible approach to delivery by not treating housing figures as ceilings whilst ensuring that development is focused on locations that deliver the Plan's Core Spatial Strategy Maintaining housing and brownfield land trajectories, and managing delivery where actual performance is outside of acceptable ranges. …. Table 4.1 provides an annual housing target for Cheltenham of 405 houses.”
Local Planning Authorities should complete Strategic Housing Land Availability Assessments (SHLAAs) as evidence for LDFs Co-ordinating the release of housing land with the necessary improvement to and/or provision of infrastructure Table 4.1 provides an annual housing target for Cheltenham of 405 houses.”

Co-ordinating the release of housing land with the necessary improvement to and/or provision of infrastructure

[18]Finally, under paragraph 7:
“7.2.8 Local planning authorities adjoining National Parks should work with National Park Authorities in developing their LDDs. Joint working on LDDs is also encouraged for Areas of Outstanding Natural Beauty which cross administrative boundaries. In drafting LDDs, local planning authorities should have regard to statutory National Park Plans and Areas of Outstanding Natural Beauty Management Plans, and positive land management policies should be developed to sustain and enhance the area’s landscape quality. 7.3 ENV3 Protected Landscapes In Dartmoor and Exmoor National Parks and the 14 Areas of Outstanding Natural Beauty in the region, the conservation and enhancement of their natural beauty, wildlife and cultural heritage will be given priority over other considerations in the determination of development proposals. Development will only be provided for where it would: Conserve and enhance the natural beauty, wildlife and cultural heritage of the National Park or Area of Outstanding Natural Beauty; or Promote the understanding and enjoyment of the special qualities of the National Park; or Foster the social or economic well-being of the communities within the National Park or Area of Outstanding Natural Beauty, provided that such development is compatible with the pursuit of National Park or Area of Outstanding Natural Beauty purposes. [my bold emphasis added] Consideration will also be given to proposals which promote the understanding and enjoyment of the special qualities of the Areas of Outstanding Natural Beauty. Particular care will be taken to ensure that no development is permitted outside the National Park or Areas of Outstanding Natural Beauty which would damage their natural beauty, character and special qualities or otherwise prejudice the achievement of National Park or Area of Outstanding Natural Beauty purposes.”
ENV3 Protected Landscapes Promote the understanding and enjoyment of the special qualities of the National Park; or

Gloucestershire Structural Plan

[19]This provides at Policy NHE 4 that:
“In Areas of Outstanding Natural Beauty the conservation and enhancement of the natural beauty will be given priority over other considerations. Regard will also be had to the economic and social well-being of the AONB. Provision should not be made for major development within the AONB unless it is in the national interest and the lack of alternative sites justifies an exception. 14.2.21 PPG.7 advises that the primary purpose of AONB designation is to conserve and enhance the natural beauty of the landscape. In pursuing this, account should be taken of the needs of agriculture, forestry, other rural industries and of the economic and social needs of local communities. Particular regard should be paid to promoting sustainable forms of social and economic development that in themselves conserve and enhance the environment.”
[20]Policy S1 states that the bulk of new development should be accommodated within or adjacent to the larger towns and at locations which “(a) maintain and enhance the predominance of .. Cheltenham as the focus for new development .. (d) conserve natural resources and high quality landscape.”

Cheltenham Borough Local Plan, July 2006

[21]This provides as follows: 4.8 The plan can contribute to these aims by controlling any negative impacts of development on landscape, buildings and wildlife. POLICY CP 3: SUSTAINABLE ENVIRONMENT (Objectives O9, O11, O12, O16, O18 and O30) Development will be permitted only where it would:(a) not harm the setting of Cheltenham (note 1), including views into or out of areas of acknowledged importance (note 2); and(b) not harm landscape character (note 3); and(c) conserve or enhance the best (note 4) of the built and natural environments; and(d) safeguard and promote biodiversity (note 5); and(e) not give rise to harmful levels of pollution (note 6) to land, air or water (surface or ground); and(f) minimise the risk of flooding (note 7). Note 1: ‘Setting’ of Cheltenham is defined as those features which create the distinctive sense of place for the Borough, including the Cotswold escarpment, the distinguished Regency heritage and green spaces. See also policy CO 2 (development within or affecting the AONB) and Cotswolds AONB 7. INTRODUCTION7.1 Cheltenham owes much to its setting at the foot of the Cotswold escarpment. The town’s eastern fringes include the high quality scenery of the escarpment, with landscape and woodlands that are amongst the most attractive in the English countryside, which are designated as part of the Cotswolds Area of Outstanding Natural Beauty (AONB). Beyond the western edge of the town lies the flatter open countryside of the Severn Vale, where the designation of a Green Belt has helped to maintain a clear differentiation between Cheltenham and the neighbouring city of Gloucester and Bishop’s Cleeve.7.2 About 38% of the Borough is countryside. It accommodates the activities of agriculture, forestry and recreation as well as providing habitats for a diversity of wildlife. Sometimes problems of trespass or damage to property indicate conflict between these activities. The countryside is also under continued pressure from developers, especially for residential development, which threatens to erode its character. These problems are most acute on the urban fringes.7.3 PPS7, Sustainable Development in Rural Areas, states that planning authorities should continue to ensure that the quality and character of the wider countryside is protected and, where possible enhanced. Development affecting the AONB 7.18 Because of its attractive character, which derives from its built form as well as the landscape of the scarp edge, and its location on the urban fringe, the AONB in the Borough is particularly sensitive to development pressures. A restrictive approach is therefore necessary to safeguard and enhance both of these elements. 7.19 In August 1991 the Countryside Commission (now Natural England) published a policy statement for AONBs. The statement expressed an urgent need for local plan policies to meet the aims of AONB designation. The Commission’s objectives for planning in AONBs are as follows:• development control policies should promote the conservation of those features that contribute to the special character of AONBs;• major development should be regarded as inconsistent with the aims of designation, except where it is proven that the development is in the national interest and no alternative site is available;• schemes for major roads and motorways should avoid AONBs whenever possible. Where a new road or motorway is unavoidable, the route and its design should be chosen to minimise damage to the environment;• applications for substantial mineral workings, or extensions to existing workings, in AONBs should be subject to the most rigorous assessment of the need for the minerals and the environmental effects of the proposal;• environmental assessment should accompany all proposals for major development in AONBs;• small-scale developments, where essential to meet local community needs and provided for in approved development plans, are normally acceptable in AONBs - such developments should be within, or immediately adjacent to, existing towns and villages, and should be in sympathy with the architecture and landscape character of the area; [my emphasis in bold added]…. 7.20 The Council confirms its support for these objectives. It considers it particularly important to protect the scarp as the dominant feature of Cheltenham’s setting and is concerned at the cumulative effect of even small-scale development and of development in new locations within the AONB. The Public Local Inquiry Inspector took the view that the attractiveness of the scarp and its location on the urban fringe justify a restrictive policy. The Council, therefore, will not permit development which would harm the natural beauty of the landscape. POLICY CO 2 DEVELOPMENT WITHIN OR AFFECTING THE AONB Objective s O9 and O10 Development which would harm the natural beauty of the landscape within the AONB will not be permitted. Major developments will not be permitted within the AONB except in exceptional circumstances (note 3). Note 3 In assessing exceptional circumstances regard will be had to: (i) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; (ii) the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and (iii) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. POLICY CP 3: SUSTAINABLE ENVIRONMENT Development will be permitted only where it would: Development affecting the AONB POLICY CO 2 DEVELOPMENT WITHIN OR AFFECTING THE AONB Objective s O9 and O10 Note 3 In assessing exceptional circumstances regard will be had to:

The Cheltenham Borough Council Strategic Housing Land Availability Assessment (“SHLAA”) April 2008

[22]There is a dispute between the parties as to the status of this document and in particular whether it constitutes, or should be regarded as a policy. I consider this below. Its relevant provisions are as follows: Executive Summary This interim Strategic Housing Land Availability Assessment (SHLAA) forms a key component of the Local Development Framework evidence base and will inform the preparation of the Local Development Framework documents, the SHLAA does not however allocate sites. The production of a SHLAA is a requirement of Planning Policy Statement (PPS) 3: Housing. The purpose of a SHLAA is to evaluate the availability of land for housing within Cheltenham and assess the potentialcapacity of that land. The SHLAA has been produced by Cheltenham Borough Council’s Strategic Land Use Team, in consultation with councillors and officers, the Home Builders Federation and other relevant parties from the development industry. The SHLAA has been undertaken in line with the Council’s Strategic Housing Land Availability Assessment: Methodology, which was subject to consultation in 2007. The draft Regional Spatial Strategy has proposed a requirement of 12,500 homes to be provided within and adjoining Cheltenham over the period 2006 – 2026 and the recent Panel Report (January 2008) has recommended a revised requirement of 13,800 dwellings. It is against this requirement that the SHLAA is assessed. The SHLAA seeks to identify potential sites suitable for housing within the Principal Urban Area, see Appendix E for a plan, as defined by the Adopted Local Plan 2006. A parallel evidence base, the Comparative Site Assessment (CSA), is also being undertaken by the Council which looks at all sites across the borough, and once complete the results of the CSA and this SHLAA will be combined to produce a final SHLAA. The sites included within the SHLAA have either been identified from existing information, submitted to the Council for consideration by internal and external stakeholders or as a result of site survey work. The identified sites have been considered by Council officers and a selected Panel in terms of their suitability for housing, their availability for development and their potential attractiveness to the market. As a technical evidence base, a large amount of the information is contained within the Appendices with a summary of results contained within the main report. The results show that Cheltenham has a 9.8 year supply of deliverable sites and has identified the PUA as being an acceptable location for further development, subject to suitable proposals. Delivery solely within the PUA will not meet all of Cheltenham’s housing needs as required by the draft Regional Spatial Strategy. Cheltenham’s LDF will need to address, how any outstanding requirement will be met. 2.4 It is important to note that whilst the SHLAA is an important evidence source to be used to inform the plan preparation stage, it does not in itself determine whether a site should be allocated for housing development or not. As such, the inclusion of sites within this SHLAA does not imply that sites will necessarily go on to be allocated or that planning permission would be granted for housing development. It is for the Local Development Framework to consider all evidence base documents, to make allocations where appropriate and to set the overall housing strategy for the borough. 6.3 All greenfield sites outside of the PUA, excluding the Area of Outstanding Natural Beauty (AONB) other than those sites identified by the development industry, are being considered in the parallel CSA evidence base. Potential sources of housing supply 6.4 Appendix F lists the potential sources of housing supply which have been considered within the SHLAA. Sites have been identified using a number of different techniques, as follows: Existing information: for example, where sites have already been identified within the Adopted Local Plan or Development Briefs etc. Comparative Site Assessment: including sites which have either been submitted to the Council by interested parties, stakeholders and the development industry, or identified by officers and councillors internally, and which fall within the PUA. Site Survey: including review of aerial photographs, maps, review of planning history and site visits. Urban extensions 6.64 Not applicable within this version of the SHLAA. The draft Regional Spatial Strategy and Panel Report identify two ‘areas of search’ on peripheral greenfield sites straddling Cheltenham and Tewkesbury’s authorities to the North West and South of Cheltenham. All peripheral greenfield sites are being assessed as part of the on-going CSA and future SHLAAs will incorporate potential capacity of peripheral greenfield sites, including areas covered by proposed urban extensions. 7 Assessment of sites7.1 The following section considers when and whether the identified sites are likely to be developed. Assessing the availability, achievability and suitability of a site provides information on which the judgement can be made in the plan making stage as to whether a site can be considered ‘deliverable’, ‘developable’ or ‘not currently developable’, as defined below: Deliverable is available now, offers a suitable location for housing development and with a reasonable prospect that housing will be delivered on the site within five years from the date of adoption of the plan. Developable is in a suitable location for housing development, and with a reasonable prospect that it will be available for and could be developed at a specific point in time. Not currently developable is where it is unknown when a site could be developed, for example, because one of the constraints to development is severe, and it is not known when it might be overcome.7.2 The developability of identified sites, including all CSA sites, has been assessed by a Panel made up of a range of professionals involved in planning/housing delivery within the Cheltenham area..7.3 Panel members received a portfolio of all sites for comment and a half day discussion was held at the Council offices. The purpose of the consultation was for the Panel Members to make their recommendations to the council as to whether and when a site was likely to come forward, whether it was achievable and suitable for housing. A summary of the Panel’s comments for each site and the Council’s view can be found in Appendix C and information on consultation with the Panel in Appendix G.7.4 This information has been used to inform the categorisation of sites into ‘deliverable’, ‘developable’ or ‘not currently developable’ which will be considered further at the plan making stage. It is not the purpose of the SHLAA to make the final judgement regarding sites. For example, whilst a site may be categorised as ‘not currently developable’ in the SHLAA, through the plan preparation a constraint may be removed to enable to site to be able to be categorised as ‘developable’. See Appendix C for categorised sites. 8.6 It should be noted that over the 20 year period of the Regional Spatial Strategy there is a projected shortfall of 2,802, this shortfall will need to be considered by Cheltenham’s LDF. 9.7 The CSA will assess the potential suitable broad locations for growth on peripheral greenfield sites, if any, in addition to the areas identified within the draft RSS. Executive Summary Potential sources of housing supply Urban extensions Assessment of sites the decision letter Shortfall in 5 year Housing Provision

the decision letter

[23]The commitment to a 5-year supply of specific deliverable units meant that in effect the Council had to find sufficient houses within that period to satisfy expected demand. The average number to be supplied annually was 405. The Inspector undertook a detailed analysis as to whether there was sufficient housing to meet the relevant demand, in paragraphs 27 – 47 of the Decision Letter. His conclusion at paragraph 48 was this:
“I conclude that Cheltenham Borough Council is not able to demonstrate a robust 5 year supply of housing land at the present time. In these circumstances applications should be considered favourably, in accordance with the guidance in PPS 3, having regard to the policies in the PPS including the considerations in paragraph 69.”
[24]This conclusion was a clear reference to paragraph 71 of PPS 3, set out above.[25]At paragraph 51 he added this:
“ if the appellant's worst case scenario is accepted the deliverable supply could amount to only some 2.6 years if the additional 361 completions identified by the council are included as I believe they should be. ... While this may be unduly pessimistic, the present financial climate gives no immediate grounds for optimism. There are no immediate prospects of an improvement in the position, pending progress on urban extensions.”
[26]The significance of 2.6 years is that in effect the housing which Cheltenham could provide in the relevant 5 year period would be sufficient for only 2.6 and not 5 years.[27]There was thus a significant shortfall as far as Cheltenham was concerned.

Effect of the proposed development on the AONB at the appeal site

[28]In respect of this question, the Inspector said at paragraphs 24 – 26 of the Decision Letter:
“24. In my judgement the development of the site would cause significant harm to the landscape quality and character of the AONB. I accept that established vegetation would serve to soften the impact of development. The section 106 agreement would deliver a substantial area of open space, which would keep development well away from the slope to the brook course and the track to Ham Villa. The site is well screened in close views from the network of footpaths beyond the Ham Brook, and would not be highly visible in the summer in close views other than from Glenn Vale itself. Nevertheless the character of the site would change and the impact of development would be clearly perceptible from higher ground. 25. I acknowledge that in views from the scarp and to the east and south-east, development on the site would be viewed against the back-drop of suburban-style development, in particular Ham Close and Hartlebury Way. The visual effects could be further mitigated by careful use of colour, and materials, which could be achieved by condition. Design and layout are reserved matters and fully within the control of the planning authority. Nevertheless the effect of development of the site would be clearly discernible, and while limited in the context of the sweep of Cheltenham's periphery, would be perceived as a harmful encroachment of development in an area of high quality landscape. The screening effect of vegetation would be far less effective in winter. 26. The appeal site was included in the AONB following a review of boundaries which was confirmed in 1990. No landscape assessment informing the review was available to the Inquiry. It was accepted that landscape assessment practice has made considerable strides since the review was undertaken. Nevertheless I do not consider it realistic to suggest that the decision to include the site was a matter or boundary definition of tidying-up for development control purposes. The overarching criterion ... was whether the land was “of sufficient quality to rank of national landscape importance”
. It seems to me that if it had not been considered to meet that test it would have remained excluded. While the trees and hedges around the site have undoubtedly grown higher since, I do not consider that this has affected the landscape quality adversely. I therefore conclude that the development would conflict with policies CP 3 and CO 2 of the LP and NHE 4 of the SP.”[29]The Inspector also found that the development here does not constitute a “major development” within the meaning of paragraph 22 of PPS 7 and Policy CO2 of the Local Plan.

The Inspector’s Analysis and Conclusions

[30]At paragraph 52, the Inspector said that:
“I accept that if this appeal were to be allowed the site would be available and deliverable for quality housing development, including 40% affordable housing, within 5 years. A package of improvements to transport facilities would be secured by executed section 106 agreements, including improvements to the bus service, so as to overcome the highway authority’s objection in this regard, and which would also be of wider benefit to this part of Cheltenham.”
[31]At paragraph 53, he referred to the other community benefits which would arise if the development were permitted.[32]Paragraphs 54 – 58 read thus:
“54. Natural England’s 1991 policy statement for AONB recognises that small-scale developments, where essential to meet local community needs and provided for in approved development plans (my emphasis) are normally acceptable in AONBs - such developments should be within, or immediately adjacent to, existing towns and villages, and should be in sympathy with the architecture and landscape character. While I consider that this advice applies primarily to settlements which lie wholly within the AONB, where the only alternative may be no development, I accept that it may be necessary to consider incursions into the AONB to accommodate Cheltenham's identified housing needs, and there may be circumstances where this would be preferred to Green Belt incursions. 55. Nevertheless the direction of emerging policy, as expressed in the recently published modifications to the RSS, establish a clear preference for urban extensions to the north west of Cheltenham, to the south, and at Bishops Cleeve. Specific reference is made to the need to amend the Green Belt to accommodate such extensions. While I accept that such urban extensions are unlikely to make any contribution to Cheltenham's land supply in the next 5 year period, there is nothing in emerging policy to support a possible review of AONB boundaries in this location. 56. Emerging RSS recognises the need for the release of greenfield land, and identifies three areas of search. These are illustrated diagrammatically and that to the south of Cheltenham may involve looking afresh at the boundaries of the AONB. However the diagrammatic indication does not extend to the area north-east of the A40, where the appeal site lies. 57 In conclusion, there are strong policy drivers at the national and strategic level which support a requirement to identify additional housing land to provide for Cheltenham's housing need, including an urgent need for affordable housing. There are additional benefits to the community which would be secured through executed Section 106 agreements set out above. 58. Nevertheless development plan policy also affords the highest protection to designated landscapes including AONBs. I have no doubt that the current proposal would result in significant harm to AONB through the change in character and appearance that would be an inevitable consequence of residential development of the site, however carefully designed and landscaped. Having regard to paragraph 69 of PPS 3, development of the site would not reflect the spatial vision set out in the current development plan or the emerging RSS for the area. In these circumstances I do not consider that the site can be considered suitable for housing. I conclude that the shortfall in housing land supply and the community benefits that would be provided in association with the scheme are of insufficient weight to overcome the significant harm to the character and appearance of the AONB which would flow from the development.”
[33]At this stage, for the avoidance of doubt, and as invited by both parties, I find that on a fair reading of paragraph 58, the Inspector’s reference to “significant harm” is made in the context of this proposed “residential development of the site” (and see his reference above to the “current proposal”), as opposed to any residential development. Equally, I read his reference in the penultimate sentence to “suitable for housing” as referring to the housing entailed by the proposed development, not necessarily any housing.[34]At paragraph 59 the Inspector expressed a residual concern about setting a precedent (which is not challenged since it was clearly not determinative) and in paragraph 60 he stated that the appeal should be dismissed.

The Issues

[35]As refined in the course of argument before me, the two error of law issues raised by the Claimant may be expressed as set out below.

The Spatial Vision Point

[36]This may be described as follows:(1) The Inspector attached weight to 3 factors all of which were in fact irrelevant to the balancing exercise he was conducting, namely the facts that (a) the proposed development was not part of any development plan; (b) it did not fall within any AOS and (c) the appeal site was not earmarked for a revision of the AONB boundary;(2) The Inspector in particular misinterpreted the RSS when he said that it expressed a “clear preference” for urban extensions within the AOS;(3) As a result of taking one or more of those factors into account, the Inspector erroneously concluded in paragraph 58 that the development did not reflect the spatial vision set out in the current plan of the RSS. This was a conclusion to which he could not reasonably have come.

The Harm Point

[37]This may be described as follows: (1) The Inspector erred in his assessment of the harm caused to the appeal site as part of the AONB because: (a) In effect he was saying no more than that the harm was that which would be caused by any development of that area, and/or (b) In a context where one of the AOS’s did, or might well, include an area of AONB, he had to find “exceptional harm” to the appeal site or that it would suffer more harm than such a development would cause to some other part of the AONB around Cheltenham or in any event to that part of the AONB within the southern AOS. To that end the Inspector should have undertaken some form of comparative analysis involving a notional placement of the development in the other AONB’s referred to above. He made no such assessment nor did he find exceptional harm, in the absence of which the harm to the AONB in question should not have taken priority over the housing need. Or at least that was a conclusion to which the Inspector might have come if he had approached the question of harm in the correct way.[38]Accordingly, contends the Claimant, the Inspector fell into error as set out in paragraph 4 above.

the law

[39]Both parties accept the general propositions of law set out in paragraphs 5 – 11 of the Claimant’s Skeleton Argument dealing with the different kinds of error of law. Indeed it is not disputed that if either the Spatial Vision Point or the Harm Point is established, then the Inspector fell into error and the decision should be quashed. The First Defendant’s position is of course that neither point is correct.[40]In considering an application of this kind to see if there are errors of law, I should approach the Decision Letter in a common-sense way. I should not subject it to over-rigorous or over-sophisticated analysis. Insofar as the Inspector formed a view as to what a particular policy means, or entails, that is a matter for him, provided of course that he gives it a meaning or implication which it can reasonably bear – see R v Derbyshire CC ex p Woods [1998] Env LR 277. It is not for the Court to second-guess or simply review the decision of the Inspector, as Mr Steel QC readily accepts. These principles are in my view particularly apposite when the task before the Inspector is admitted to be a balancing exercise between two important but competing considerations. analysis: (1) the spatial vision point Inclusion within a Development Plan

analysis: (1) the spatial vision point

[41]In paragraphs 16 and 17 the Inspector drew attention to the Natural England policy summarised in paragraph 7.19 of the Local Plan. This permitted as “normally acceptable” within an AONB certain small-scale developments if within a development plan. The context was the fact that the Inspector thought that this policy could apply in theory not only to developments within small towns and villages within an AONB but also, conceivably, to meeting the housing needs of urban areas such as Cheltenham. But any such development would have to be in a development plan. The development here, even if otherwise to be regarded as small-scale was not in any such plan so paragraph 7.19 was irrelevant. I can see nothing wrong with this analysis.[42]The Inspector returned to this policy in paragraph 54. As for the final sentence (see paragraph 32 above), I think that in context, this is again a reference to whether the particular policy in paragraph 7.19 of the Local Plan would apply absent inclusion of the proposed development within a development plan. He thought (correctly) that it could not. But if the last sentence is read more widely, so as to make a general point about possible incursions into AONB’s then, equally I do not read him then as imposing the qualification of being already in a development plan. Indeed the Inspector could not have been imposing that qualification in all cases (ie whether prima facie within paragraph 7.19 or not) because in the appeal before him he was clearly considering an incursion into AONB which was not part of some development plan.[43]All the Inspector was saying, in my view, was that this particular development could not take advantage of paragraph 7.19 of the Local Plan, even if otherwise applicable. I can see nothing wrong with that.

Areas of Search

[44]The complaint here focuses on the Inspector’s view that within the RSS there is a “clear preference” for development by way of urban extensions in the designated AOS’s. In my judgment, this view of the RSS was one which the Inspector was clearly entitled to reach as being within a reasonable range of interpretations of the policy. I say that for the following reasons.

The RSS itself

[45]The AOS’s were clearly designated as such after due consideration of various factors. The particular AOS’s for Cheltenham are set out in paragraph 4.1.33 and the amount of houses to be provided therein is stated in the section at p96 of the Bundle. Paragraph 4.1.28, properly read, does not make an obvious reference to AONB’s. The word “including” in the penultimate sentence just means that of the 7 AOS’s for Cheltenham and Gloucester, 5 are in the Green Belt which will therefore require redesignation.[46]I can see nothing in the RSS itself which would put beyond the bounds of reasonableness, the notion that it gave a clear preference to AOS’s.

The SHLAA

[47]Paragraph 4.16 of the RSS refers to the obtaining of SHLAAs as evidence for LDF’s (Local Development Framework). As to the SHLAA in respect of Cheltenham,(1) The Executive Summary makes reference to the requirement of 13,800 dwellings. This is the total of the units within the AOS’s at p96 of the Bundle. The actual assessment of sites outside Cheltenham’s urban area is in fact to be conducted within the parallel Comparative Site Assessment not this draft SHLAA. It is an evidence-gathering exercise;(2) Paragraph 2.4 emphasises this evidence-gathering role. It is not the function of the SHLAA to allocate housing nor does the identification of any particular site imply a grant of planning permission;(3) Paragraph 6.3 does include (by way of an exception to an exception) AONB sites “identified by the development industry”. This in fact is the subject of the CSA and paragraph 6.4 says that included here are sites submitted to the Council by among others the development industry. No evidence has been put before me that the appeal site was the subject of such a submission to the Council as part of the CSA. I do not read paragraph 6.3 as referring in general to any AONB site which might at some future point be the subject of a simple planning application. As such the scope of the AONB reference is limited in my view;(4) Paragraph 6.64 really says the same thing as paragraph 6.3. So does paragraph 9.7. All Greenfield sites will be examined not just those in the two AOS’s. To this extent the SHLAA (or CSA) does not limit its scope to the AOS’s. But the inclusion of AONB’s nonetheless seems to me, again, to be limited;(5) I can see that there would be little point in the CSA looking at a site which would inevitably be ruled out as unsuitable and that this general exercise is mandated by paragraphs 33 and 54 of PPS 3. But it is nonetheless an evidence-gathering exercise and not a policy as such. In any event, the Inspector has obviously assumed that there could be some incursion into an AONB in an appropriate case. But the question is whether the potential scope of the SHLAA is such that the Inspector was wrong to take the view that overall the RSS had a clear preference for AOS’s, in that this is an interpretation of the policy not reasonably open to him. In my view that cannot possibly be said. In those circumstances, it cannot be said that this was an irrelevant factor.

AONB Boundaries

[48]It is said that the Inspector has made an error of law by suggesting or implying in paragraphs 55 and 56 of the Decision Letter that planning consent for a development within an AONB could only be granted if the boundaries were changed so that it was no longer in the AONB. If he was saying that, it would be erroneous. But properly read, I do not think that the Inspector was saying that. It would be very odd if he was, given the nature of the overall balancing exercise he was conducting, and his view that there could in an appropriate case be an incursion into an AONB. The language used in paragraph 55 and 56 may be somewhat loose but the broad thrust is surely that this particular AONB had not been specifically earmarked as one of the locations within the chosen AOS’s, in contrast with another AONB which was or might be included within the southern AOS. It is really saying, in a different way, that the appeal site is not within an AOS.

Spatial Vision generally

[49]As to the Inspector’s reference in paragraph 58 to the appeal site not reflecting the spatial vision set out in RPG 10 or the RSS, it is first necessary to ascertain in which respects he was so opining. In my view, looking at paragraph 58 as a whole and the immediate context of the observation in question, it is clear that he thought that it was not so reflective because:(1) The appeal site was not in an AOS (which is where the clear preference lay) and(2) The development would go against ENV 3 which is an express part of the RSS.[50]The first of those points follows naturally from what the Inspector said in paragraphs 55 and 56. If that was a reasonable view of the policy, as I find it was, there is no basis for challenging the Inspector’s finding that the development was not in that respect reflective of the RSS.[51]As for ENV 3, while this is not an absolute prohibition on development (and is not treated by the Inspector as such), it is clearly a powerful factor and the Inspector was fully entitled to say that this part of the spatial vision within RSS was not reflected in the proposed development either.[52]Of course, the housing need element of the RSS would have been reflected in the development but that hardly needed to be stated since it was obviously the case and the Inspector in effect observed as much in paragraph 57. But in paragraph 58 he is dealing with the counter-balancing features. No challenge has been made to the Inspector’s view expressed in the first sentence of paragraph 58 nor could there be. These respects in which the development would not reflect the spatial vision then militate against the encouragement of grants of planning permission stated in paragraph 71 of PPS 3 which itself requires regard to be had to paragraph 69. Which in turn refers to reflecting the spatial vision for the area.[53]On that basis I cannot see how the Inspector’s reasoning can here be impeached on the ground that his finding that the proposed development was not reflective of the relevant spatial vision was one which was not reasonably open to him.

Conclusion

[54]There is therefore nothing in the Spatial Vision Point. analysis (2): the harm point Finding of Significant Harm

analysis (2): the harm point

[55]I do not read the Decision Letter (and in particular paragraphs 19 – 25) as saying that the harm which the Inspector found would be caused by the development, was no more than that which would be caused by any development at the site. And as I have made clear in paragraph 33 above, I do not read the Decision Letter as saying that any housing at the appeal site would have to be ruled out. The Inspector was dealing with this particular development.[56]There is therefore no basis for suggesting an error of law in the Inspector’s assessment of significant harm to this AONB. It is not for me to second-guess or review that assessment. It was one plainly open to the Inspector.

The need for Exceptional Harm

[57]Nor do I consider that there is any basis in law or policy for requiring the Inspector to have found exceptional as opposed to significant harm before he could refuse the appeal. Indeed, even if the Inspector had found only some harm but not significant harm, he was entitled to weigh that in the balance. Otherwise there would not be much point in having the various policies referred to above which accord a high priority to protecting AONB’s, in the first place.

The need for a comparative harm assessment

[58]Nor can I see any reason why the Inspector would err unless he performed the kind of comparative assessment referred to in paragraph 37(1)(b) above. It does not follow that because another AONB is or may be within an AOS that the assessment of harm to this AONB should be subject, as it were, to some form of harm litmus test by reference to another site. Nor does that follow because the Inspector had already given weight to the fact that this site is not within an AOS. There might be all sorts of reasons why the fact that part of the southern AOS included an AONB did not rule it out as an AOS – economic, employment, educational factors for example relating to that particular location. It would be quite impossible to infer that the inclusion of that AONB within the area of search meant that harm of a particular level was therefore, and for all other areas, to be regarded as acceptable without more, so that an Inquiry into another development at another AONB had to show a level of harm above that threshold. The proposition has only to be stated for its impracticability to be seen. It would involve multiple enquiries into areas other than the one in question. Conclusion[59]There is thus no discernible error of law revealed in the Harm Point.

generally

[60]Mr Steel QC urged upon me the underlying policy of removing the log-jam in the provision of housing caused by the current lack of allocated housing and development plans. Hence paragraphs 71 and 72 of PPS 3. But the Inspector had that point fully on board – see paragraph 57 for example. He was aware of the immediate housing benefit which the development could provide and the importance of that objective. All that went into the balance. And his function was not to act as a roving finder of much-needed housing. It was to deal with a particular planning application which happened to involve strong competing considerations and policies, as summarised in paragraph 3 of the Decision Letter.

Conclusion

[61]In truth, this application is no more than a disagreement with the conclusion of the Inspector’s balancing exercise, which may well have been a fine one. But that is no basis for interference with it. Accordingly the application is dismissed.[62]I am grateful to both Counsel for their excellent and succinct oral and written submissions.

Cited in 1 later judgment