“(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g. Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, per Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223 at 230:” ‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’ (2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g. again the Ashbridge Investments case, per Lord Denning M.R. loc. cit. (3) The Secretary of State must abide by the statutory procedures, in particular by theTown and Country Planning (Inquiries Procedure) Rules 1974 . These Rules require him to give reasons for his decision after a planning inquiry r.18 and those reasons must be proper and adequate reasons which are clear and intelligible, and deal with the substantial points which have been raised: Re Poyser and Mills Arbitration [1964] 2 Q.B. 467.”
“An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. Moreover, the Inspector’s conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ...”
“...as Forbes J. said in City of Westminster v Haymarket Publishing Ltd: “It is no part of the court’s duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph”
“I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”
“the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission … if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance.”
“is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what has been laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority. The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is … a limited one.”
“44. The East Midlands Regional Plan: The most relevant EMRP policies are cited in the SCG [CD-ID1]. Whereas the appellants consider that the proposals conform with all of these policies, the Council argues that they conflict in particular with policies 1 (regional core objectives), 26 (protecting and enhancing the region’s natural and cultural heritage), 28 (regional priorities for environmental and green infrastructure), and 36 (regional priorities for air quality). 45. The EMRP provides a broad development strategy for the East Midlands up to 2026. Of relevance to North West Leicestershire and Coalville, its Three Cities Sub Regional Strategy “contains policies and proposals to create more sustainable patterns of development and movement within and between Leicester, Derby and Nottingham and their hinterlands”
“47. To boost significantly the supply of housing, local planning authorities should: use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period; identify and update annually a supply of specific deliverable sites sufficient to provide 5 years worth of housing against their housing requirements with an additional buffer...;…”
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
“due weight should be given to relevant policies in existing plans according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”
“322. Issue 1i) – the scheme’s effect on the purposes, identity and character of the designated Green Wedge: For the Council and most of the 3rd parties, this is probably the most salient issue in the Inquiry. Andrew Bridgen MP said that, judging from his postbag, the prospective loss of the Green Wedge has been the single most contentious and generally unpopular planning proposal in the district in the last few years, since the Stephenson Green scheme first emerged. This was confirmed by WAG and by several individual local residents, all objecting to it…” 323. No third parties appeared at the Inquiry in support, and I have seen no evidence of any public support for it in any documents… ... 325. It is very clear that many local people greatly value this green area of open countryside on the edge of Coalville, and want to preserve its status as Green Wedge, which has protected it hitherto from development. They want to see that status maintained in effect, even if under another name, such as an Area of Separation (as mooted in the emerging CS). That is so even though the area in question is not designated in any statutory plan for its landscape or other intrinsic environmental quality. 326. I do not accept the appellants’ argument that there is something inherently unsuitable, either in terms of its location and in terms of its characteristics, in a Green Wedge (or similar) planning designation for this particular tract of urban fringe countryside. This part of the Green Wedge is where it is simply because it separates urban areas (Coalville and Whitwick), and up to now has remained open, undeveloped and largely in agricultural use. Nothing in the appellants’ evidence persuades me that there is anything illogical, inappropriate or out-dated in maintaining this land as a Green Wedge; rather, their evidence is directed at showing that it would be better put to residential use, as a “sustainable” urban extension… 327. In my view, the appeal site is a fairly unremarkable tract of countryside, largely comprising open fields, but with minor undulations and variations in topography and numerous hedgerows and individual trees. Nevertheless, it is by no means unattractive, and remains intact and unspoilt. It is still productively farmed, mainly for arable crops, and, as I saw during my own site visits, is almost nowhere degraded or abused by dumping, abandoned vehicles, fires, vandalism or other negative but typical manifestations and signs of the urban fringe. 328. It provides a variety of pleasant and unobstructed views, including many of the low wooded hills around Whitwick nearby to the north and east. Despite being subject to some traffic noise from the adjoining A511, much of it also lends an appreciable degree of rural tranquillity, which can be experienced on any of its public footpaths and in Green Lane. 329. And, crucially, it provides very clear separation between Coalville and Whitwick. In short, I consider that in general the appeal site functions well as a Green Wedge. To my mind, there is no obvious reason why it should not continue to do so well into the future. 330. So much for the land itself. In policy terms, post-Framework it remains subject to saved development plan policy E20, which is highly restrictive towards new development and is intended to keep the land predominantly clear and open, and in continued agricultural use. There is no doubt - and the appellants acknowledge this - that the appeal proposals conflict with this policy…. 331. I am also in little doubt that, despite the large scale of the scheme, the appellants have gone to some lengths to design its layout with the intention of minimising and mitigating its impact on the Green Wedge. That is apparent from the original design exercises, beginning with the Princes Foundation report, and continuing through other reports and the lengthy, iterative and consultative design process described by Mr. Williams. [109-114] … 333. I agree with the appellants that, technically, the scheme would not lead to the complete and unmitigated coalescence (or merging) of Coalville and Whitwick. That is largely owing to the inclusion of a linear series of green areas between the built-up parts of the appeal scheme and the two existing settlements, such that no new development would be juxtaposed with any existing areas of housing. The appellants place much emphasis on these areas of green infrastructure as attractive, usable but separating features which would render the scheme acceptable in the wider landscape. 334. However, to my mind and eye the overall effect of the scheme would still be tantamount to the (undesirable) coalescence of Coalville and Whitwick. The proposed development would be on such a scale that it would erode the Green Wedge to a very large extent. Little of it, in this eastern part, would remain intact and undeveloped. 335. Thus I agree with the thrust of the Council’s and WAG’s evidence and opinions on this matter. In place of a broad swathe of open land on the edge of Coalville, there would be a very large urban development with green edges…. 336. I find, therefore, that the appeal scheme would have a very profound impact on the purposes, identity and character of this part of the designated Green Wedge. It would undermine its purposes, almost nullify its identity, and completely change its character. In short, and in large part it would be permanently lost. How much does this matter? Plainly it matters a lot to the Council, and to local residents and the general public. In my opinion, the Green Wedge here has served and continues to serve a useful and much valued planning purpose, and it should only be lost for very compelling land use planning reasons. I deal with this below, principally in relation to housing land requirements and supply. 337. Finally under this heading, the Framework contains many references to green infrastructure (a term defined in its glossary) and the need to protect it where this is consistent with the imperatives of development. I consider that, given its value as part of the Green Wedge, the appeal site should be seen as part, and a very important part, of the existing green infrastructure of Coalville and its environs. The presumption in favour of sustainable development (NPPF, para. 14 etc.) contains caveats applicable to decision-taking, including (in its footnote 9) a reference to the need to protect and conserve “Local Green Space”
“Green Wedge 12. For the reasons given in IR/322-337, the Secretary of State agrees with the Inspector that the appeal scheme would have a very profound impact on the purposes, identity and character of this part of the designated Green Wedge, and would undermine its purposes, almost nullify its identity, and completely change its character. He agrees with the Inspector that in large part it would be permanently lost (IR/336). He further agrees that the overall effect of the proposed development would, by eroding the Green Wedge to a large extent, be tantamount to the undesirable coalescence of Coalville and Whitwick (IR 333-334). 13. The Secretary of State notes that the period the NWLLP covers ended in 2006, but he agrees that the Green Wedge here has served and continues to serve a useful and much valued planning purpose, and that it should only be lost for very compelling land use planning reasons (IR/336). He further agrees with the Inspector that, given its value as part of the Green Wedge, the appeal site should be seen as a very important part of the existing green infrastructure of Coalville and its environs (IR/337).”
“Option 1 – Identify all three areas as a Strategic Gap or Area of Separation This option recognises the role that the undeveloped areas play in restricting the physical merger of Coalville with the areas of Swannington, Thringstone and Whitwick. New development which would result in this physical separation being reduced would be resisted. In effect this would represent a continuation of the existing approach, albeit under a different policy.”
“55. The emerging North West Leicestershire Core Strategy: At the time of the Inquiry, the Council was in the process of preparing the submission version of the CS. It was anticipated that this would be considered at a special meeting of the full Council in late April 2012, after which it would be subject to a regulation 27 public consultation. 56. According to [NWLDC7] submission is expected “in the summer of 2012” [Footnote 4: According to the Council’s Framework submissions, this duly occurred, and the Council agreed to publish its CS for consultation prior to submitting it to the Secretary of State]. The appeal site, together with other parts of the existing Green Wedge, will be identified as an Area of Separation (using a term from the EMRP), and will not be allocated for any form of development.”
“216. From the day of publication, decision-takers may give weight to relevant policies in emerging plans according to: the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given); the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and the degree of consistency of the relevant policies in the emerging plan to the policies in the Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given.”
“16. The Secretary of State has had regard to paragraph 216 of the Framework, which indicates the weight that decision-takers may give to relevant policies in emerging plans, as well as to the guidance in The Planning System: General Principles referred to by the Inspector. The Secretary of State notes the Inspector’s reasoning at IR/351-356 and his conclusion that the appeal scheme would be of such a size and scale as to prejudice the outcome of the council’s emerging Core Strategy and should therefore be considered premature (IR/357 and 378). In reaching his conclusion the Secretary of State notes that a pre-submission Core Strategy was published for consultation in May 2012 after the close of the inquiry. However, the Secretary of State agrees with the Inspector that the emerging Core Strategy should be given only limited weight (IR/312). As such he considers that this is a consideration which counts against the proposed development, but is not on its own determinative of the appeal.”
“Planning policies should sustain compliance with and contribute towards EU limit values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan.”
“…it is common sense that any large new area of housing will generate a significant amount of vehicular traffic, and hence vehicle emissions (and possibly other forms of air pollution). And any potential site near Coalville would give rise to some traffic passing regularly through the Stephenson Way/Broom Leys Road junction. Nevertheless, it is even more obvious that the appeal site is closest to it, and the AQMA, still the only one at Coalville. My conclusion is that, from the point of view of maintaining air quality, it is not a sensible location in which to build a very large and potentially polluting housing development.”
“298. The appellants’ additional (not agreed) conditions would require the submission and subsequent implementation of measures to mitigate the scheme’s effect on air quality at the Broom Leys/Stephenson Way junction, consistent with the Council’s AQAP. The Council objects to this on the grounds that the deleterious effect of the scheme on air quality could not be mitigated by such a condition, which lacks adequate precision. I agree. It might in principle be possible to draft an appropriate condition for this purpose, but such a condition is not before the Inquiry and I do not suggest any particular form of wording.”