KGL (Estates) Ltd v South Staffordshire District Council [2013] EWHC 3744 (Admin)

Case No CO/651/2013[2013] EWHC 3744 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, Bull Street Birmingham B4 6DSDate 06/12/2013
Before
HHJ DAVID COOKE
Between
KGL (Estates) LtdClaimantSouth Staffordshire District CouncilDefendantKGL (Estates) Ltd ClaimantSouth Staffordshire District Council Defendant
John Hobson QC and Stephen Whale (instructed by Burrell Jenkins) for ClaimantChristopher Katkowski QC and Graeme Keen (instructed by The Solicitor, South Staffordshire DC) for DefendantHearing Hearing dates: 26-7 September 2013
JudgmentHHJ David Cooke :
[1]The claimant is the owner of substantial areas of land in the village of Great Wyrley in Staffordshire. The defendant is the planning authority for the South Staffordshire area, in which Great Wyrley is situated. The claimant brings this claim pursuant to section 113 of the Planning and Compulsory Purchase Act 2004, under which it is entitled to question the validity of certain planning documents on the basis that they are either not within the appropriate power, or a procedural requirement in relation to their adoption has not been complied with.[2]The document in question is the defendant's Core Strategy, which was adopted on 11 December 2012. The Core Strategy document is part of the development plan which the defendant is required to produce by the 2004 Act. By section 20 of that Act, it was required to be submitted to the Secretary of State for independent examination, which in this case was undertaken by an Inspector, Mr Simon Berkeley, who proceeded by way of setting out a schedule of matters to be examined, in relation to which interested parties could make written responses, and holding a hearing on 29 and 30 November 2011. He published a report on 17 October 2012 concluding in essence that subject to a number of modifications not relevant to the present case, the Core Strategy was "sound" within the meaning of paragraph 182 of the National Planning Policy Framework.[3]It is common ground that the claim is akin to a judicial review, and that in order to succeed the claimant must show that the Inspector erred in law in reaching the conclusions challenged.[4]The particular part of the Core Strategy challenged is Core Policy 6 entitled "Housing Delivery", which sets out a policy that between 2006 and 2028 the Council will plan for the delivery of at least 3850 homes in the South Staffordshire area. Taking account of homes already built or committed (e.g. those for which planning permission had already been granted) by 2010, this required a minimum of a further 1610 homes to be planned and built in the remainder of the planning period. A table was set out in which this number was allocated between five "Localities", and between the various villages in each locality. Explanatory notes set out that villages have been graded according to a "settlement hierarchy" into "Main Service Villages" and "Local Service Villages", and that the policy had been that 90% of the required housing should be provided in Main Service Villages in order to promote the concept of "sustainability".[5]The explanatory notes to the policy state that the target figure is based on the evidence base of the West Midlands Regional Spatial Strategy and note that the policy of that Strategy is to focus growth on the most sustainable settlements to make best use of existing infrastructure. Paragraph 8.8 says:
“ The underlying principle will be that the larger Main Service Villages will accommodate a greater scale of development with progressively lower levels of growth in the Local Service Villages in order to safeguard their local character and distinctiveness. In reaching a decision on the proposed level of growth in each of the villages, a number of key factors have been taken into account and these are… [10 factors are then listed]”
The document does not set out any detailed reasoning as to why these factors have led to the particular numbers adopted.[6]Great Wyrley is a Main Service Village. It falls in the North Eastern Area and is allocated a minimum number of 56 new dwellings, out of 226 for the whole of that area.[7]The claimant seeks to quash this table. Its argument has been that Great Wyrley should be allocated a minimum of 300 new dwellings, some of which it hopes would be built on its land. This interest gives it the status of a "person aggrieved" entitled to bring the present challenge.[8]It is important to note that the claimant does not challenge either the total figure of 1610 dwellings or the principle that 90% of them should be built in the Main Service Villages. If its argument had been accepted the effect would therefore be that the distribution of the new homes to be provided would be very substantially redirected away from other villages and into Great Wyrley. There was a considerable amount of evidence in the bundles tracing the evolution of the Core Strategy document and the representations that the claimant had made during that process. I do not propose to go into that in detail, but I note the force of Mr Katkowski's submission that the basis of the proposed individual allocations had been set out by the Council in consultation documents published in 2009 and 2011, that the claimant's initial argument appears to have been that the total number of houses should have been increased, which was not pursued after the Council rejected it, and that thereafter there had only been one reference by the claimant to the table of individual allocations being unjustified and requiring reconsideration, in an unspecified way. The Inspector had access to this documentation and no doubt it formed part of the background against which he conducted his review, but this challenge is based on the way in which the Inspector dealt with the issues before him and not on the detail of events preceding that review.[9]The challenge is put on three basesa. the Inspector erred in law in concluding that the Core Strategy was "sound" in relation to the allocation of houses shown in the tableb. alternatively his conclusion to that effect was Wednesbury unreasonable i.e. a conclusion that no reasonable Inspector could properly reach on the evidence before him orc. that the reasons given for his conclusion were inadequate.[10]It is also common ground that the Inspector's report must be read in a commonsense and not over-legalistic way, and as being addressed to an informed audience, that is to say readers who are aware of the issues raised before him and the arguments put to him so that he may state his conclusions and reasons shortly and without excessive background explanation. He need not deal with every matter raised before him or in representations to him, even if it is a material consideration, but his reasons should enable the reader to understand what was decided and why, and what conclusions were reached on the "principal important controversial issues"; see South Bucks DC v Porter (No 2) [2004] 1WLR 1953 at para 36.[11]The first part of the Inspector's report deals with the assessment of "soundness" of the defendant's spatial strategy, of which the housing distribution forms part. "Soundness" is a concept defined in paragraph 182 of the National Planning Policy Framework, and means that a planning document must be positively prepared, justified, effective, consistent with national policy and the most appropriate when considered against the reasonable alternatives.[12]In a section beginning at paragraph 9 the Inspector considered and approved the approach based on dividing the area into five localities and the settlement hierarchy of villages described above. He deals with housing and Core Policy 6 from paragraph 21 onwards, noting that the anticipated provision of 3850 new homes falls very significantly short of the need for new housing in the district, but approving the policy of restricting growth in rural areas in order to promote development in major urban areas. None of this is challenged.[13]From paragraph 27 onwards the Inspector deals with the allocation of housing set out in the table. “27 Core Policy 6 sets out the spatial distribution of new housing development and assigns figures to the Main and Local Service Villages identified for housing growth. Approximately 90% of new homes are planned to be located in the Main Service Villages, and roughly 10% in Local Service Villages. This amounts to a significant focus on the former. Some concerns have been raised about the effects of such a concentrated approach… 29 In justifying the proposed apportionment, the Council points to earlier stages in the plan's formulation. Consultation on the issues and options in 2006 set out a number of broad alternative strategies… The Council says that … key partners considered that development should be more focused in the Main Service Villages as the scale of housing suggested for the lower tier settlements would have only marginal sustainability benefits… 31 On the one hand, none of this explicitly justifies the apportionment between the Main and Local Service Villages set out in the [Core Strategy]. On the other hand, though, there is no robust evidential basis to support any other specific numerical split. It is clear that the proposed distribution has been influenced by engagement with stakeholders and has been altered and developed through the plan making process. That the approach stems from the positive preparation of the plan lends support to it. 32 In addition, it seems to me that, in the absence of irrefutable evidence to suggest that a greater housing allowance should be given to less sustainable villages, there should be a presumption in favour of the most sustainable places. The distribution proposed strongly reflects that principle and finds support in the [Sustainability Assessment], which all adds significantly to the justification for it. Overall, I consider that the degree to which the plan concentrates housing development in the Main Service Villages should not be regarded as unsound. 33 The Council has put forward other modifications ... to Core Policy 6. The first addresses the possibility of circumstances changing such that further housing is needed during the plan period. ... The modification focuses [the additional housing] on both the Main and Local Service Villages, with the apportionment between them having regard to a number of key factors. As these factors are those which underpin housing distribution of the [Core Strategy] this will ensure that the basis for distributing such additional housing is consistent with the planned strategy for growth. ”[1]Mr Hobson's principal point is that while this reasoning deals with the concentration of housing on the Main Service Villages, it does not specifically address the individual allocations given to each village so as to enable the claimant to determine how they have been arrived at. Accordingly, he says. The Inspector cannot lawfully have concluded that it was "justified" as required by para 182 of the NPPF. A great deal of evidence has, as I say, been filed on both sides dealing with the evolution of the documents that led up to the publication of the Core Strategy. The claimant would say that the Council's evidence does not at any point show a detailed chain of reasoning starting from the factors said to have been considered and ending with the specific numbers of houses in the table. Some of the Council's evidence is also criticised as being an ex post facto rationalisation. Mr Hobson in his skeleton argument submitted that there were inconsistencies between the various statements on behalf of the Council as to the matters considered at different points or the importance attached to them.[2]The court however is not charged with assessing directly the merits of the decision making process leading up to the specific figures now set out in the table, but only the lawfulness of the Inspector's decision to approve the Core Strategy as "sound" including that table in the form it now is. Any consideration of alleged inadequacy or inconsistency of reasoning on the Council's part is limited to whether it is so serious that the Inspector could not properly have concluded that the relevant policy resulting was "sound".[3]Consideration of the Core Strategy involved an evaluation of an enormous number of elements going to make it up. The Inspector's general procedure, which was not criticised, was first to review the draft document and supporting material (including previous consultation drafts and responses) and then formulate a schedule of Matters and Issues for Examination, which ran to 9 pages and 64 paragraphs organised into 11 topics or "Matters". This was published with a draft timetable for the hearing, with interested parties being invited to submit representations in writing. Paragraphs 10 and 11 of this schedule dealt with the matters now in dispute, and read as follows: “10. The table [in Core Policy 6] sets out the broad strategy for each of the settlement hierarchy categories. What evidence is there to support 90% of the district's housing being within the Main Service Villages, and 10% within the Local Service Villages? What alternatives to this apportionment were considered? Why is this the most appropriate option?[11]What is the justification for the apportionment of homes between each of the Main Service Villages? What alternatives were considered, and why were they rejected in favour of this distribution? Does the Sustainability Appraisal support the chosen option? ” These two paragraphs clearly raised both the issue of the 90%/10% split between the larger villages taken as a whole and the smaller villages taken as a whole, and also the distribution between each of the villages within those two categories.[17]The Council sent a substantial response document dealing with each paragraph in the Inspector's schedule. It included the following:
“11.4. It is the very diversity of South Staffordshire villages which has meant that each village/locality has to be assessed individually. Whilst directing the majority of housing growth to the Main Service Villages as strategic locations, the numbers for each will inevitably vary as the balance between competing issues has to be very finely judged… 11.6. Is important to note that whilst the individual numbers in policy CP6 have not been scrutinised to a specific level of numerical detail, the Alternative Strategies Paper (December 2007) was accompanied by an SA which considered different apportionment approaches to the housing numbers. The Interim SA concluded that the settlement hierarchy option most closely met the sustainability objectives of the district … 11.8. The apportionment of housing numbers between each of the main settlements has also been influenced by the Regional Spatial Strategy for the Midlands. The WMRSS (2008) includes objectives for the Black Country that recognise the importance of the regeneration of the Black Country to the RSS. There are 4 objectives set out in RSS Para 3.14A: (d). to transform the Black Country environment 11.9. The impact of these objectives and their influence on the apportionment of homes between each of the main settlements has been recognised in four major public inquiries into residential development proposals… 11.10. Evidence … demonstrated a reduced propensity to out-migrate from the Black Country MUA the further that the destination of the move is located away from the MUA… This evidence has in part influenced the selection of Penkridge as a broad/strategic location for future housing growth that will accommodate more housing growth than other Main Villages…”
[18]Mr Hobson understandably placed great reliance on the opening words of paragraph 11.6. of this document as indicating that the various considerations undertaken by the Council had not led to an explicit analysis producing the specific numbers that eventually appeared in the table. But as Mr Katkowski submitted it is apparent from the paragraphs that are quoted above that the Council has not arrived at these numbers without any consideration at all of the distribution as between the individual villages, even if the process by which the consideration of factors relating to each relevant village resulted in the specific numbers is not completely described. In any event, it seems to me inevitable that the considerations taken into account are of a somewhat general nature and insofar as they lead to a specific allocation it will be one which results from the exercise of a broad judgment rather than an analysis that mandates one particular set of figures.[19]It appears that although the claimant made written representations, no point was taken as to the issue now in contention, ie the distribution of houses as between the main villages, though it was raised by other parties. At the Inspector's hearing, this issue, and various others, were dealt with on the first morning. Mr McGlue asked to attend the hearing on behalf of the claimant and was invited to do so, on the basis of the interest shown by the claimant in the plan and his response to the Inspector's document. However although he raised various matters during the hearing, he did not raise any point about the basis of distribution between the Main Service Villages or the allocation for Great Wyrley. That distribution was mentioned by others, but there is no challenge to the Council's evidence that no participant at the hearing suggested that Great Wyrley should have received a higher allocation.[20]The matter of individual allocations was not therefore one of the most important matters of controversy before the Inspector. He had raised it himself as a relevant matter, but in the light of the way the written representations and evidence at the hearing developed it faded into the background. In those circumstances it seems to me that Mr Katkowski is right to say that the Inspector was not obliged to deal with it in his final report in any great detail, and to focus on the prior question of the broad strategy of allocating 90% to the main villages taken together.[21]I do not accept that the Inspector can be taken to have forgotten about the question of distribution between those villages altogether, and so failed to take any account of a material consideration. With the benefit of hindsight, and had he known that this point might be taken, he might agree that it would have been better to have included a few words expressly directed to that issue. But I accept Mr Katkowski's submission that on the required realistic (not legalistic) reading by informed persons, it is sufficiently clear that he had it in mind.[22]Paragraph 31 of the report refers to "the apportionment between the Main and Local Service Villages" and the absence of evidence to support "any other specific numerical split". At first blush this may be taken to refer only to the overall 90:10% division, but I agree with Mr Katkowski that the immediately following reference to the "proposed distribution" having been "altered and developed through the plan making process" indicates the Inspector had reviewed the evolution of the consultation documents and must have had in mind the individual village allocations. The various changes in the preceding documents showed not only a change in the Council's overall distribution strategy from 70:20:10% between Main, Local and Small villages to the 90:10% eventually adopted, but also changes in the numbers given for individual villages. The Inspector's language, in the context that he was clearly aware of a possible issue as to those allocations, having raised it in his own list of issues, suggests he was referring to all the various changes that were made over the whole process and not just the strategic change from 70:20:10% to 90:10% and accordingly that the "specific numerical split" meant the individual allocations as well as the selection of the 90:10% ratio.[23]Further, para 33 in dealing with the Council's proposed modification setting out how any additional housing sanctioned during the plan period would be distributed referred to the factors set out for distribution between the Main and Local Service Villages as being "those which underpin the housing distribution of the [Core Strategy]". As Mr Katkowski showed, the factors set out in the modification are in fact those relied on by the Council as the basis of the individual allocations between villages. It must therefore be the case that the Inspector regarded that modification as appropriate because it produced consistency with a distribution that he approved, and that what he had approved included the individual village allocations.[24]The overall position it seems to me is this. The Inspector had essentially one decision to make, whether the plan was "sound" or not. It is not quite as simple as that since he also had to decide whether if not sound as drafted it would be with modifications, so that he had to address each of the potential modifications. But no modification was suggested to him in relation to the individual village allocations, and it is sufficiently clear in my judgment that he had that issue in mind and decided the plan was sound without himself requiring any modification to deal with it. It was a minor issue in itself, given that the process was a "top down" one in which an overall total was first set and then distributed according to the 90:10% split and further sub distributed between villages, and given the modest attention paid to that issue in representations it was well within the exercise of planning judgment to approve CP6 with the table attached to it without requiring any more detailed analysis of the process by which the individual numbers were arrived at. The Inspector did not fail to take account of the basis for the individual allocations as a material consideration. The first ground of challenge therefore fails, and the second ground must fail also as it could not be said that the decision was one that no Inspector properly directing himself could have reached.[25]So far as the challenge based on reasons is concerned, that too is not made out. It is clear what was decided, namely that the Core Strategy document was "sound", and that document included the table sought to be challenged. The decision therefore extended to that table. The report sufficiently sets out why that decision was reached, in this context because the Inspector was satisfied that the Council's policy approach was a sufficient justification for the specific figures set out in that table, which resulted both from the 90:10% split and the application of other considerations as between the individual villages. His focus on the first part of that process was permissible because that was the principal area of controversy in the representations made to him.[26]For those reasons, the claim is dismissed.