Harrogate Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1345 (Admin)

Case No CO/13350/2012[2013] EWHC 1345 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Monday, 15 April 2013
West Yorkshire
LS1 3BG
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
HARROGATE BOROUGH COUNCILClaimant--and--
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant--and--
Between
SWINTON PARK ESTATEInterested Party
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr John Hunter (instructed by Harrogate BC) appeared for ClaimantMr Giles Cannock (instructed by the Treasury Solicitor) appeared for Defendant for The Interested Party did not appear and was not represented
JUDGMENT
[1]The claimant, Harrogate Borough Council, applies for an order under section 288 of the Town and Country Planning Act 1990 to quash a decision of a planning inspector, Mr Robin Brooks, appointed by the defendant, the Secretary of State for Communities and Local Government, allowing an appeal by the interested party, Swinton Park Estate, under section 78 of the 1990 Act against the claimant's decision to grant planning permission for the conversion of a former hostel and caretaker's cottage to form two dwellings at Colsterdale Lodge, Healy, Masham in North Yorkshire.[2]The claimant is the local planning authority for the area in which the application for planning permission was made. The application for planning permission was received on 15 August 2011 and it was validated in November 2011. The application proposed the conversion and reconfiguration of existing buildings to form two separate dwellings. An officer's report was prepared on 15 December 2011 to enable the application to be determined under delegated powers. The report considered the principle of development to be acceptable, save in one respect, namely that it failed to comply with the preference in paragraph SG3 of the Council's Core Strategy for rural building conversions to be used for economic development or affordable homes for local people rather than for market housing.[3]Whilst the report accepted that the building was not suitable for economic use because of its isolated location, it noted that no justification had been offered for not making any provision for affordable housing needs. The report concluded that it would be appropriate for one of the dwellings to be provided as affordable housing. The report also noted that the applicant had failed to make provision for any contribution to enhance local open space. Accordingly, it concluded that the application was contrary to the development plan and that there were no other material considerations that outweighed that conflict.[4]The report's recommendations were accepted, and the claimant issued a decision notice refusing permission on 19 December 2011. So far as material, the reasons for refusal state:
"The proposal does not make provision for the provision of at least one affordable home for local people as such the proposal is contrary to the requirements of Policy SG3 of the Core Strategy 2009."
[5]A second reason for refusal, namely the interested party's failure to make provision for any contribution to enhance the local open space, was addressed in the interested party's Grounds of Appeal. A unilateral undertaking was submitted to the claimant on 19 December 2011. It was not taken into account in the delegated report or in the decision notice. Before the Inspector, the claimant accepted that reason for refusal had been addressed. Accordingly that reason is not now relevant.[6]The interested party appealed against the claimant's refusal of planning permission. In a decision letter dated 5 November 2012 the Inspector granted planning permission subject to five conditions and the unilateral undertaking. The Inspector's reasoning is contained, so far as is material, in paragraphs 3 to 8 of the decision. Paragraph 3 is headed "Policy context and main issue" and states:
"Under policy SG3 of the Harrogate Local Development Framework Core Strategy (CS) development in the countryside is to be strictly controlled, but specified forms of development are to be encouraged there, one of which is affordable homes for local people. Such provision of affordable housing is to be in accordance with CS policies HLP3 and HLP4. The former relates to rural exception sites and is not relevant here. The latter states new build affordable housing may be permitted as part of schemes to convert existing rural buildings. A further exception in policy SG3 to the generally restrictive approach to development in the countryside is Rural building conversions where the building makes a positive contribution to the landscape character of the countryside preferably for economic development uses or affordable homes for local people rather than market housing. In this policy context the determining issue in the appeal is whether the proposed conversion should provide for affordable housing, bearing in mind its location and the need for such housing in the District."
[7]There is no doubt that Colsterdale Lodge makes a positive contribution to landscape character in the terms of SG3, and that the Council accept that its remote location would make it unsuitable for economic development uses.[8]In paragraph 5 the Inspector notes his agreement that the relative inaccessibility of the location is not in itself a bar to provision of affordable housing. He also notes that it is clear that there is a significant need for affordable housing, both within the District as a whole and within the immediate area. Paragraphs 6 to 8 of the decision state as follows:
"6. All these matters weigh in favour of seeking an element of affordable housing, but I believe the Council are going too far in ‘requiring’ (in the words of both the decision and the officers’ report) such provision in this case under CS Policy SG3. The wording of the Policy provides no support for that stance; rather, it talks of affordable housing as something that will be encouraged and that would be preferable to market housing. Similarly, Policy HLP4 states that affordable housing may be provided as part of rural conversions. 7. Nor have the Council provided any evidence, for example in the shape of supplementary guidance, of how the general terms of Policy SG3 might translate into a specific figure for the amount of housing that might be sought. The officer's report simply says the Council would require that at least one of the dwellings is an affordable unit with no apparent investigation or indication of criteria that might be brought to bear. The same applies to the criticism that the appellant has provided no financial evidence to demonstrate that providing one affordable dwelling would not be economically viable; equally the Council have provided no guidance on how they would judge such viability. … 9. The Council say that they have discussed with the appellant ways in which affordable housing might be provided on the Swinton Park Estate in conjunction with a registered housing provider. This appears to me to be an appropriate approach under CS Policy SG3 and the fact that it has apparently not yet borne fruit does not in itself justify refusal of permission in this case. In summary, my reading of CS Policy SG3 is that its approach to provision of affordable housing is enabling rather than prescriptive. Accordingly, I conclude on the main issue that, although there was a significant demand for affordable housing in both the District and the locality, and the appeal property is not an unsuitable location for it, provision in this case is not warranted by policy."
[9]Mr John Hunter for the claimant challenges the decision of the Inspector on two grounds: first, that the Inspector's decision is tainted by a material error of law in that he misunderstood or misapplied an important development plan policy; second, that the Inspector failed to give any or any adequate reasons for failing to give effect to the preference indicated by that policy.[10]Policy SG3 is headed "Settlement growth: conservation of the countryside including Green Belt". It provides, so far as material:
“Outside the development and infill limits of the settlements listed in Policy SG2 of this Core Strategy, land will be classified as countryside and there will be strict control over new development in accordance with national and regional planning policy protecting the countryside and Green Belt. In order to promote a sustainable pattern of rural development in those areas of the countryside outside Green Belt the following forms of development will be encouraged: 1. Affordable homes for local people in accordance with Policies HLP3 and HLP4 of this Core Strategy; 2. Rural building conversions where the building makes a positive contribution to the landscape character of the countryside preferably for economic development uses or affordable homes for local people rather than for market housing…”
[11]The legal framework is well-known and not in issue. It is only necessary to note two points. First, in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, at paragraphs 18 to 19, Lord Reed recently summarised the principles and interpretation of development plan policy. He said that "... policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."[12]Second, when determining whether there is or is not compliance with Local Plan policy, it is the text of the policy which is important, albeit that account may be taken of the reasoned justification or "other explanatory information" (see Reigate and Banstead BC v Secretary of State for the Environment and Watts [1996] JPL 307). Mr Hunter submits that, properly understood, the preference stated in SG3 for conversions to be for affordable housing or economic development purposes rather than market housing has practical force which has some prescriptive effect. The effect of this part of the policy, he submits, is that conversions of rural buildings are expected in the first instance at least to be for economic or affordable housing. If they are not, then they will not necessarily be unacceptable, but some reason will need to be given for not following the preference. Mr Hunter submits that its Inspector ignored the fact that there exists a middle ground between something being absolutely “required” (which as he observed was not the case in respect of affordable housing under SG3), and it being a matter of total indifference whether it is provided at all (which was what he concluded, but which is wrong). The statement of preference, Mr Hunter submits, is one way of achieving just such middle ground.[13]Mr Hunter submits that the key policy function of SG3, as the wording of the policy makes clear, is to exercise “strict control” over development in the countryside. "Strict control" is an expression that was used in national and local planning policy to indicate a restrictive approach to development in the countryside. Mr Hunter points to paragraph 3.35 to 3.6 of the Explanation to SG3, which explains that the policy is intended to “protect” the countryside with certain “local exceptions and/or clarifications”. In this regard Mr Hunter relies in particular on paragraph 17 of PPS7, which is headed "Re-use of buildings in the countryside" and states as follows:
"The Government's policy is to support the re-use of appropriately located and suitably constructed existing buildings in the countryside where this would meet sustainable development objectives. Re-use for economic development purposes will usually be preferable, but residential conversions may be more appropriate in some locations, and for some types of building. Planning authorities should therefore set out in Local Development Documents their policy criteria for permitting the conversion and re-use of buildings in the countryside for economic, residential and any other purposes, including mixed uses. These criteria should take account of... [and then it is the second bullet point on which Mr Hunter places reliance] • specific local economic and social needs and opportunities."
[14]Mr Hunter refers to paragraph 3.38 of the reasoned justification for SG3.2, which states: "The Government’s policy is to support the re-use of appropriately located and suitably constructed existing buildings in the countryside where this would meet sustainable development objectives. PPS7 states that the re-use of such buildings for economic development purposes will usually be preferable, but residential conversions may be more appropriate in some locations, and for some types of buildings.[15]It continues:
“Many rural building conversions have over the past 10 years been permitted for residential development and through more recent use of the Harrogate District Local Plan (Selective Alteration) Saved Policy H5, these residential conversions have started to assist the Council in meeting the District’s affordable housing need. There has been general support for the re-use of rural buildings during the community involvement on this Core Strategy. The re-use of rural buildings that contribute to the character of the countryside and assist in the provision of affordable housing is considered to meet sustainable development objectives.”
[16]Mr Hunter submits that the use of the expression "preferably ... rather than" in SG3.2 was adopted in order to mirror PPS7, which provided that conversion for economic development purposes would be "usually preferable" unless residential development was "more appropriate" save that, in addition to economic development, the purpose of SG3 is to indicate that economic development or affordable housing would be preferable to market housing. This suggests, he submits, that the same force attributable to the use of the term "preferable" in PPS7 should be attributed to the use of "preferably" in SG3. If so, then it must follow that it was intended to indicate that the affordable housing/economic development is to be provided unless market housing has been shown to be "more appropriate" in the particular circumstances, just as PPS7 provided in the case of economic versus residential development.[17]It is, in my view, important, as Mr Giles Cannock for the defendant submits, to have proper regard to the planning policy background to the decision under consideration. The appeal fell to be determined in accordance with the development plan unless material considerations indicated otherwise. It was common ground at the time of the Inspector's determination that the proposal complied with regional strategy, all the policies in the saved Local Plan, and all the policies in the Core Strategy save for SG3. Accordingly, Mr Cannock submits, applying section 38(6) of the 2004 Act, for planning permission to be refused the claimant had to demonstrate(1) a conflict with policy SG3;(2) that such a conflict with policy SG3 outweighed compliance with all the other policies of the development plan;(3) that there was thereby a conflict with the development plan as a whole; and(4) that there were no material considerations which outweighed any identified conflict with the development plan as a whole.[18]Before the Inspector, it was common ground that the appeal site was previously developed land, that the buildings on the appeal site were vacant and falling into a state of disrepair, conversion for an economic use was not suitable, conversion to a permanent dwelling was the only option to safeguard the buildings for the future, and the buildings make a positive contribution to the character and appearance of the area. Only minor alterations are proposed, which would not have any adverse impact on the character and appearance of the area. Indeed the Inspector concluded that impact would be positive.[19]Mr Cannock submits that the purpose of SG3 is to protect the countryside. SG3 applies because the appeal site lies outside the development and infill limits of the settlements in SG2. Applying SG3, therefore, there will be prima facie “strict control over new development” on the appeal site. Applying the policy as a whole, Mr Cannock submits that, if a proposal complies with any of the four criteria in SG3, the test of “strict control” is met. Development would not be “encouraged” if it did not pass the “strict control” exercised by the policy.[20]Mr Cannock submits that SG3 encourages certain forms of development. As such, forms of development would promote sustainable patterns of rural development. The policy encourages certain forms of development as an exception to the strict rule which will be applied to other forms of development which are not encouraged. Rural building conversions are specifically encouraged. The proposal was for rural building conversion. The claimant accepted that the building would make a positive contribution to the landscape character of the countryside. Mr Cannock submits -- and I agree -- it follows that the proposal was therefore, on the basis of the agreed evidence, expressly encouraged by SG3(2). That being so, it was an exception to the “strict control” which should otherwise be applied to the appeal site. Further, that being so, it was a type of scheme which community involvement on the Core Strategy has indicated should be permitted.[21]In my judgment, the Inspector's interpretation of SG3(2) is correct. I accept Mr Cannock's submission that the fact that SG3(2) expresses a preference for affordable housing on the appeal site rather than market housing does not change this conclusion. Whilst market housing (as part of a rural building conversion) is encouraged, affordable housing is encouraged even more.[22]I also reject Mr Hunter's submission based on the draft of SG3 and certain passages of the Core Strategy Inspector's report which dealt with it. In his submission, they confirmed that the intention behind this part of SG3 was to give “priority” to conversions for economic development or affordable housing ahead of market housing. The Inspector's decision and interpretation of the policy however, he submitted, completely failed to give effect to that intention.[23]In my judgment, the subjective intention of the Core Strategy Inspector cannot be of primary relevance in interpreting the policy. Whilst Mr Hunter submitted that the Inspector's report was objective material, he recognised that there were objections to relying upon it.[24]I can deal briefly with other submissions that were made. Mr Cannock submits that the Inspector's decision is further supported by the new National Planning Policy Framework, which the Government published on 27 March 2012. Mr Cannock relies, in particular, on paragraphs 14 and 55 of the Framework, which emphasises a presumption in favour of sustainable development and does not express any preference in favour of affordable housing above market housing in the re-use of redundant or disused buildings. However, I accept Mr Hunter's submission that this new Framework does not assist the defendant for two reasons: first, and primarily, because the Inspector did not consider it to be material (see paragraph 11 of the decision); second, because there are transitional provisions which have the effect that, if there is a conflict between the framework and SG3, the Inspector could still give full weight to SG3.[25]I also reject Mr Cannock's submission that, because the thresholds in the Affordable Housing Policy (H5) were not engaged because the development was for fewer than three units and the application site was for less than 0.1 hectares, the issue of affordable housing did not arise in the present case when consideration was given to SG3. SG3 does not state that the preference for affordable housing only applies if the threshold in H5 is engaged, and the Inspector did not find that the SG3 preference did not apply because H5 was not engaged.[26]Finally, I turn to the reasons challenge. Mr Hunter submitted that the claimant had been prejudiced by an inadequacy of the Inspector's reasons for concluding that the proposal conformed with policy SG3. The Inspector at the very least, he submitted, had to explain why, notwithstanding that the conversion involved no element of economic development or affordable housing (and the need, he acknowledged, for such affordable housing), he concluded that it would be consistent with that policy to grant permission.[27]In my judgment, the Inspector's reasoning is more than adequate. In summary, the Inspector reasoned at paragraph 8 of the decision:
"…my reading of CS policy SG3 is that its approach to provision of affordable housing is enabling rather than prescriptive. Accordingly, I conclude on the main issue that, although there is a significant demand for affordable housing in both the district and locality, and the appeal site is not a unsuitable location for it, provision in this case is not warranted by policy."
The Inspector sets out his reasons clearly in paragraph 7, in particular, of the decision.[28]For the reasons I have given, this appeal fails. MR CANNOCK: My Lord, can I in those circumstances ask that the claimant pays the defendant's costs. MR JUSTICE SUPPERSTONE: Yes, I have a statement of costs, have I not? MR CANNOCK: Yes, my Lord, and you will be pleased that the figure is agreed at £6,924. MR JUSTICE SUPPERSTONE: £6,924. Mr Hunter, principle, figure? MR HUNTER: Both agreed, my Lord. MR JUSTICE SUPPERSTONE: Thank you very much. I will make an order for costs in those terms. Can I, before you say anything else, Mr Hunter, thank you both very much for your assistance and for your very clear submissions. MR HUNTER: Thank you in particular for dealing with it when the bundles were perhaps not as helpful as they might have been. MR JUSTICE SUPPERSTONE: Not at all. MR HUNTER: My Lord, I do have a further application to make and it is for leave to appeal. I appreciate that your Lordship has dealt with the point thoroughly and no doubt that is what my learned friend, Mr Cannock, will say in reply to these submissions. But, my Lord, in my submission, for the reasons I have already gone over and I will not repeat again, there is at least a realistic prospect that a court above may take a different view. My Lord, I do not think I can elaborate that point any further. Unless I can assist you further? MR JUSTICE SUPPERSTONE: Thank you very much. Do you have anything to say? MR CANNOCK: Not really, my Lord. It is a pretty simple point. Your Lordship has given very clear reasons. Respectfully, I would agree. I cannot conceive that an appeal court would come to a different conclusion. MR JUSTICE SUPPERSTONE: Mr Hunter, I think you will have to renew the application elsewhere. MR HUNTER: Thank you, my Lord. MR JUSTICE SUPPERSTONE: Thank you very much.