Bovis Homes Ltd v Secretary of State for Communities and Local Government & Anor [2010] EWHC 3378 (Admin)

[2010] EWHC 3378 (Admin)Case No CO/7890/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue BIRMINGHAM DISTRICT REGISTRY, BIRMINGHAM CIVIL JUSTICE CENTREDate 21/12/2010
Before
MR JUSTICE FOSKETT
Between
BOVIS HOMES LIMITEDClaimant(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTFirst Defendant(2) EAST NORTHAMPTONSHIRE DISTRICT COUNCILSecond Defendant
Hugh Richards (instructed by Ansons LLP) for ClaimantPeter Goatley (instructed by Treasury Solicitor) for First Defendant for The Second Defendant was not representedHearing Hearing date: 10 December 2010
Judgment

Introduction

[1]This is an appeal by the Claimant pursuant to section 288 of the Town and Country Planning Act 1990 against a decision of the First Defendant by his Inspector, Mrs Hilda M Higenbottam, BA (Hons), MRTPI, given in a decision letter dated 15 June 2010.[2]The Inspector dismissed the Claimant’s appeal against the refusal by the Second Defendant to grant planning permission to the Claimant for the erection of 14 residential dwellings, garages and associated works at 74 Benefield Road, Oundle, Peterborough, Northamptonshire. The existing dwelling adjacent to the appeal site was 72A Benefield Road, a property owned by the Claimant and constructed pursuant to a 2002 planning permission.[3]It is common ground that an appeal to this court may succeed only if the Inspector’s decision is open to challenge on what are, in effect, the usual public law grounds.[4]It is of importance to note that the Claimant’s application had been for three 2- bedroom properties, four 3-bedroom properties, two 4-bedroom properties and five 5-bedroom properties. It is that proposed “mix” of properties that lies at the heart of this case.

The issues before the Inspector

[5]The Inspector held a hearing on 30 March 2010. The Claimant’s case was presented by Mr Barry Herrod MRTPI, BA, BTP, its Planning Manager, who had supplied a detailed witness statement in support of the appeal. The Senior Planning Policy Officer of the Defendant, Mr Michael Burton MRTPI, BA, MSc, represented the planning authority, along with a Planning Officer and the Housing Strategy Manager. Two members of the public attended.[6]The Decision Letter was dated 15 June 2010.[7]The Inspector said she considered that the main issues in the appeal were -(i) Whether, in the light of Development Plan Policies the proposals make sufficient provision for education, affordable housing and open space;(ii) Whether the mix of dwellings proposed would contribute to the creation of a mixed community; and(iii) The effect of the proposals on the living conditions of the occupiers of 72A Benefield Road, with particular regard to privacy.[8]The Inspector found in favour of the Claimant on issues (i) and (iii), but in respect of issue (ii), she concluded that the proposed development would be contrary to Policy 11 of the Rural North, Oundle and Thrapston Plan Development Plan Document (“the RNOTP”) because it would fail to provide mainly 1 or 2 bedroom houses, thus failing to contribute to the creation of a mixed community contrary to Policy 15 of the North Northamptonshire Core Spatial Strategy (“CSS”).[9]Policy 11 of the RNOTP had been revised and re-worded by the Inspector who dealt with the examination of the development plan document (‘DPD’), Mr John R Mattocks, BSc, DipTP, MRTPI, FRGS. His report to East Northamptonshire Council was entitled ‘REPORT ON THE EXAMINATION INTO THE EAST NORTHAMPTONSHIRE RURAL NORTH, OUNDLE AND THRAPSTON DEVELOPMENT PLAN DOCUMENT’ and was dated 8 July 2009 following hearings in October 2008 and April/May 2009.[10]In relation to the issue of housing mix within a proposed development his report read as follows: 3.49 Issue 3: Justification for policy 11. The introductory section of policy 11 repeats national policy to encourage a mix of housing types to achieve mixed communities. The generalised reference to taking account of the findings of the SHMA is of no value in a policy. It is for the LPA to do that in formulating the policy. 3.50 I recognise that there is some justification for the approach from the conclusions reached in the SHMA but, to my mind, this does not warrant the lack of flexibility through the setting of site size thresholds with fixed percentage requirements. The wardbased analysis which supplements the SHMA relies heavily on 2001 census data. In my assessment it is not sufficiently robust to justify a policy of this detail. This appears to be recognised by the qualifications stated in the introductory paragraphs to Fordham’s secondary data analysis (Doc. 323). 3.51 The policy suggested in the SHMA for larger housing developments, i.e. of over 50 dwellings, is subject to the proviso “where a new community is being developed” which, within the RNOTP area, applies in practice only to the larger allocated sites in Oundle and Thrapston. As such I consider that the mix in the first criterion is sound. 3.52 Although the analysis in Table 4 of Doc. 323 indicates that more, larger dwellings are needed in Thrapston with more, smaller dwellings in most of the other wards within the RNOTP area there is a fair degree of variation in terms of the degree of the perceived mismatch. The data certainly does not justify the “at least 60%” requirement across the plan area outside Thrapston and the larger sites in Oundle. 3.53 I consider that the evidence supports no more than an indication that the balance of house types should be “mainly” within the stated sizes and, in all cases this should be subject to the caveat that local needs surveys may suggest an alternative mix. I see no reason why this provision should be limited to the affordable housing sector. The advice in paragraph 22 of PPS3 refers to the profile of household types requiring market housing. The footnote suggested by change S008 (U035) can be incorporated within the policy. 3.54 In order to make the DPD sound, all but the final paragraph of policy 11 shall be deleted and replaced by the following text: New housing development should include a mix of housing types to take account of local need. Unless specific housing needs information is available to suggest a more appropriate mix, proposals for new housing (including affordable housing) should provide: 1. On sites of over 50 units, an even split between 2,3 and 4 bed house types; 2. On smaller sites in Thrapston, a mix of house types to include mainly 3, 4 or more bedrooms; 3. On smaller sites other than in Thrapston, a mix which includes mainly 1 or 2 bedroom house types.[11]It was this revised wording that the Inspector in the present case had in mind when considering the appeal before her and it is common ground that Category 3 is and was the relevant category for present purposes.[12]The material part of her decision letter was in the following terms:
“12. LP Policy H4 requires, on residential development sites of more than 10 units, a variety of dwelling types and styles. Policy 15 of the North Northamptonshire Core Spatial Strategy (CSS) requires a balanced mix of housing types and tenures. 13. The mix of units proposed are 3 x 2 bedroom, 4 x 3 bedroom 2 x 4 bedroom and 5 x 5 bedroom units. In my view, this mix of units would provide a variety of dwelling types and styles and as such would comply with LP Policy H4. 14. However, the Rural North, Oundle and Thrapston Plan Development Plan Document (RNOTP) has been the subject of an examination and the Inspector’s report has been received by East Northamptonshire Council. The Inspector amended Policy 11, in order to make the DPD sound, to require on sites of less than 50 units a mix of units to include mainly 1 or 2 bedroom house types, unless specific housing needs information is available to suggest a more appropriate mix. 15. I am aware that the RNOTP has not been adopted by the Council, pending resolution of certain planning issues. The RNOTP has however been examined and found sound by the Inspector, and the LPA are in receipt of the Inspector’s report, I therefore give this policy, which is unaffected by those matters, considerable weight. 16. The Inspector’s report into the RNOTP makes clear that the evidence, including the Strategic Housing Market Assessment and ward based analysis, supports no more than an indication that the balance of house types should be ‘mainly’ 1 or 2 bedroom house types and that the policy should be subject to the caveat that local needs surveys may suggest an alternative mix. 17. PPS3 states that for smaller sites the mix of housing should contribute to the creation of mixed communities having regard to the proportions of households that require market or affordable housing and the existing mix of housing in the locality. A key characteristic of mixed communities are a variety of housing. 18. I note that a number of local residents support the development in terms of the mix and the number of units. However, whilst it is stated that there is a need for 3 bedroom or larger units, not 2 bedroom or smaller units, there is no local needs survey to support this contention. In the absence of such a survey I have no evidence to support an alternative mix of units. As such, I consider that the proposals would fail to provide mainly 1 or 2 bedroom houses and this would be contrary to RNOTP Policy 11 and CSS Policy 15 thereby failing to contribute to the creation of a mixed community.”
[13]Her conclusion was in the following terms:
“24. Whilst I have found no material harm to the living conditions of the occupiers of No 72A; that the proposals make adequate provision for the additional educational needs likely to be generated by the development; and the proposals would be below the thresholds for the provision of affordable housing and open spaces, this does not outweigh the failure of the proposals to contribute to the creation of a mixed community. For the reasons given above I conclude that the appeal should be dismissed.”
[14]It will be clear that the Inspector recognised that the examining Inspector’s changed wording represented an “emerging policy” and, in the light of the grounds of appeal, one issue that falls for consideration is the status of that policy at the time of her decision.[15]As previously indicated, the date of the examining Inspector’s report was 9 July 2009. On 27 July the Planning Policy Committee of the Second Defendant decided not to adopt the RNOTP. There were four reasons for doing this, none of which reflected on the re-drafted Policy 11. Advice was taken about the situation and the Council was advised by Queen’s Counsel in the following terms:
“1. The Plan (RNOTP), at present, can be regarded as an emerging policy and is a material consideration but in regard to the points where the Inspector has recommended changes, the Council would not stand much chance of defending a decision based on the parts of the policy which the Inspector disagreed upon. 2. Ultimately, the Secretary of State … can direct the Plan to be adopted, so doing nothing is not a sensible approach as the Council would lose any chance to put its case to support its view to the Secretary of State. 3. The Council should request the [Secretary of State] to either approve the Plan, not incorporating the Inspector’s changes that the Council did not accept, or to have the Plan withdrawn. In both cases, detailed reasons should be given by the Council as to why the [Secretary of State] should follow this approach. The former option would appear more appropriate.”
[16]That advice was considered at a further meeting of the Planning Policy Committee on 29 October 2009 when it was decided that the Council would invite the Secretary of State to modify the RNOTP. On 11 February 2010 the Council resolved to ask the Secretary of State to modify the Plan, but the two matters in issue had nothing to do with Policy 11.[17]The Inspector would have known that that was the situation when she held the local inquiry on 30 March 2010 and she would have had no further evidence about the position concerning adoption of the Plan than that. What she would have known clearly, as I have indicated, is that no-one took exception to the Inspector’s re-drafting of Policy 11.

The grounds of appeal and the arguments in support

[18]Two grounds of appeal are advanced: Ground 1: The Inspector failed to have regard at all to a material consideration which she ought to have taken into account namely evidence to support an alternative mix of units to that indicated in emerging RNOTP Policy 11. Further, the Inspector failed properly to have regard to emerging RNOTP Policy 11. This requires the Inspector to have properly understood the policy which she failed to do. Ground 2: The Inspector failed to give adequate and intelligible reasons for her decision to give emerging RNOTP Policy 11 “considerable weight”. Ground 1:

Ground 2:

[19]Both grounds refer to the “emerging RNOTP Policy 11”. Mr Hugh Richards developed these grounds in his Skeleton Argument and in his attractive and skilful oral argument.[20]As to the first ground, he drew attention to two matters in particular: first, that the Inspector said she attached “considerable weight” to the emerging Policy 11 to which I have referred; second, that she had noted that the emerging policy required that on sites such as the appeal site the property mix should be “mainly 1 or 2 bedroom types” subject to “the caveat that local needs surveys may suggest an alternative mix”. Mr Richards emphasised that she had used the word “surveys” in this connection because, as he submitted, she had decided that “in the absence of such a survey [she had] no evidence to support an alternative mix of units”.[21]Mr Richards submitted that this is not what the emerging policy required. He says that the examining Inspector referred to the need for “specific housing needs information” in support of a more appropriate mix to displace the approach set out in each of his three numbered paragraphs. Mr Richards says that, had he intended something as fixed and prescriptive as a “local needs survey” he would have incorporated it into his wording. However, he did not do so.[22]Mr Richards complained that Mrs Higgenbottam shut out from her consideration other evidence that she had received, namely, material in Mr Herrod’s statement and local information from local people, because it was not in the form of a “local needs survey”. He submitted that this amounted to a failure to understand the policy (see Horsham District Council v Secretary of State for the Environment and Another (1991) 63 P.&C.R. 219) and resulted in a failure to take into account a material consideration in the form of information provided from these other sources.[23]I should say that the “information” advanced by Mr Herrod in the statement put before the Inspector included reference to the consultation response of the Council’s Housing Strategy Officer concerning a previous planning application on the site. One of the reasons given for rejecting that application was that the mix of dwellings did not “meet the need for Oundle as identified in the Housing Market Assessment (HMA)”. It was said that the proposed mix was “defiantly biased to the larger executive home market rather than to small starter or moderate family sized homes”. The response indicated that “Housing Strategy” would like to see the mix changed in accordance with the HMA so that 2, 3 and a few 4 bedroomed properties are provided”. Mr Herrod was suggesting that the new application (suggesting the mix indicated in paragraph 4 above) was a response to that suggestion. The statement also drew attention to the conclusion of the HMA itself, namely, that the analysis it contained did not lead to “prescriptive and exact numbers”. He further contended that other Inspectors on appeal had been cautious in their approach to the HMA.[24]Mr Peter Goatley, for the Secretary of State, in equally attractive and skilful submissions, contended that none of the material relied upon by Mr Herrod constituted either “specific housing needs information” or a “local needs survey” such as to displace the approach set out in the revised Policy 11 of the RNOTP. In other words, he argued, the Inspector was entitled to arrive at the conclusions she did upon the information provided to her and there is no basis to suggest that any material information was left out of account. He also said that the Inspector rightly concluded that the proposal as advanced in the current application conflicted with what he described as the “parent policy”, namely, Policy 15 of the North Northamptonshire Core Spatial Strategy which requires “a balanced mix of housing types”.[25]At no point, Mr Goatley argued, did the Claimant put forward anything like a housing needs survey or other form of methodological survey or analysis which would warrant bringing the proposal within the caveat referred to by the examining Inspector in paragraph 3.53 of his report (see paragraph 10 above). He submitted that the examining Inspector was plainly contemplating the need for specific local housing needs information in order to displace the approach set out in his numbered paragraphs: he was anticipating more than the material put before him at his examination and would certainly have wanted more than anecdotal evidence from local residents.[26]Mr Richards developed the argument foreshadowed in Ground 2 on the basis that, since there was, he contended, no prospect of the revised policy being adopted in the foreseeable future, the Inspector should not have attached any weight to it. Saying, as she did, that she gave it “considerable weight” against that background without explaining why represented, he argued, reasoning that was inadequate. She had, it was submitted, failed to address a principal issue between the parties.[27]Mr Goatley submitted that this argument was tantamount to contending that the emerging policy was an immaterial consideration which, he submitted, runs counter to the substance of the argument under Ground 1. He said that the emerging policy was either a consideration or it was not: if it was (which he submitted it was), the weight to be attached to it was a matter of planning judgment which was entirely within the province of the Inspector.

Discussion

[28]The parameters within which the contentions on the appeal are to be judged were not in dispute and indeed are well-established.[29]Both Counsel drew attention to the words of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No 2)[2004] 1 WLR 1953, HL, where he summarised the law in these terms:
“35 It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit. 36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[30]I do not think it is necessary to go beyond that summary for the purposes of this appeal.[31]As to the first Ground of Appeal, I broadly accept Mr Goatley’s submissions. It seems to me that, since neither the examining Inspector’s report nor the Decision Letter of the Inspector dealing with this application should be read other than in a straightforward manner, the intention behind each is, in my judgment, clear. The examining Inspector intended that something in the nature of a housing needs survey was needed for the caveat he referred to to apply. Whilst that might be something other than the formal Housing Needs Survey often conducted by a local planning authority, it would need to give the kind of information that such a survey would convey. It would certainly have to have a clear and acceptable methodological basis and would require far more than the anecdotal evidence of local residents or mere assertion or argument. That, as it seems to me, is the way the Inspector approached the issue in this case and I do not consider that her interpretation of the examining Inspector’s approach can be faulted. Without diminishing Mr Herrod’s submissions, she was, in my judgment, entitled to say that they did not amount to what the examining Inspector had in mind.[32]Was it appropriate to take the examining Inspector’s approach into account at all and, if so, did the Inspector give adequate reasons for her approach? In my view, the answer to each part of this question is ‘yes’. As is demonstrated by the analysis in paragraphs 15-17 above, the revised approach in Policy 11 cannot be said to have been abandoned irrevocably. The evidence before the Inspector (and before me) demonstrates that no issues were raised by the Local Planning Authority about the examining Inspector’s formulation in this context. Other issues were raised, but not in relation to this aspect. The Inspector was, in my judgment, entitled to say that the policy was “unaffected by those [other] matters” and, accordingly, was entitled to have regard to the policy.[33]Was she entitled to give it “considerable weight”? In my view, she was. In the first instance, the weight given to a material consideration is a matter of planning judgment and the court will not interfere with that. Secondly, to the extent that it is appropriate to ask whether her approach was consistent with national guidance, I consider that it was. Mr Richards drew attention to the general principles adumbrated in ‘The Planning System: General Principles’ published by the Office of the Deputy Prime Minister in 2005. The principles are a re-statement of well established principles. The paragraphs to which attention was drawn were these: 14. Emerging policies, in the form of draft policy statements and guidance, can be regarded as material considerations, depending on the context. Their existence may indicate that a relevant policy is under review; and the circumstances which have led to that review may need to be taken into account. ... 17. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect. 18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:• Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.• Where a DPD has been submitted for examination but no representations have been made in respect of relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted. The converse may apply if there have been representations which oppose the policy. However, much will depend on the nature of those representations and whether there are representations in support of particular policies. 19. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process. ...[34]Given the matters to which I referred in paragraph 15-17 above, I cannot see how the Inspector can be criticised for giving “considerable weight” to the emerging policy having regard to the second bullet point under paragraph 18. Again, however, as Mr Goatley says, this is only guidance and is not itself to be construed as a statute. The Inspector's task was to see where in the spectrum of national and local acceptability the emerging policy lay and to give it the weight she thought appropriate. That, in my judgment, is what she did and I can discern nothing inadequate in the articulation of her reasoning that led to the conclusion she reached.

Conclusion

[35]For these reasons, I do not consider that the Claimant has succeeded in the contention that the Inspector's decision should be set aside on any of the traditional public law grounds and thus remitted for re-consideration. Accordingly, the appeal is dismissed.[36]I am grateful to Mr Richards and Mr Goatley for their helpful submissions.