Malvern Hills District Council v Secretary of State for Communities and Local Government & Anor [2015] EWHC 2244 (Admin)

Case No CO/1395/2015[2015] EWHC 2244 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue BirminghamDate Date: 23/07/15
Before
MR JUSTICE HICKINBOTTOM
Between
MALVERN HILLS DISTRICT COUNCILClaimant(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) NICK JONESDefendant
Jack Smyth (instructed by John Williams, Head of Policy & Governance,Malvern Hills District Council) for Claimant for The First Defendant was not represented and did not appearKevin Leigh (instructed by under the provisions for Direct Access) for the Second DefendantHearing Hearing date: 23 July 2015
Judgment

Introduction

[1]This is an application under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”), in which the Claimant local planning authority (“the Council”) seeks to quash a decision dated 17 February 2015 of an inspector appointed by the First Defendant Secretary of State, namely Joanne Jones BSc (Hons) MA MRTPI (“the Inspector”), to allow an appeal under section 78 of the 1990 Act against its decision dated 7 July 2014 and to grant planning permission for six dwellings and associated development at Malvern Caravans, Malvern Road, Powick, Worcestershire (“the Site”) on the application of the Second Defendant (“the Developer”).[2]At the time of her decision, the relevant development plan comprised the saved policies of the adopted Malvern Hills District Local Plan 1996-2011 (2006) (“the Local Plan”). In the course of her decision letter, at paragraph 17, the Inspector found that the proposed development would comply with Local Plan Policies DS1 (The Location of Development), DS12 (Housing in Category 104 Settlements) and DS14 (Housing Development in the Open Countryside). The Site is in open countryside. Those policies broadly direct the location of residential development away from open countryside.[3]In this claim, the Council relies upon three related grounds of challenge, namely: Ground 1: The Inspector erred in determining that the development complied with Policies DS1, DS12 and DS14. Ground 2: The Inspector failed to give adequate reasons for her finding that the development complied with those policies. Ground 3: The Inspector failed to have regard to paragraph 55 of the National Planning Policy Framework (“the NPPF”), which provides that planning authorities should avoid new isolated homes in the countryside unless they meet identified “special circumstances”.[4]The application was set down for hearing today, 23 July 2015. On 29 June 2015, the Council and Secretary of State agreed that the Inspector’s decision should be quashed, and the matter remitted for redetermination, the Secretary of State conceding that the Inspector erred in failing to give adequate reasons for her finding that the proposed development complied with Policies DS1, DS12 and DS14 (i.e. Ground 2), and thus erred in her approach to determining the appeal before her. A draft consent order to that effect, signed by both parties, was lodged with the court on 7 July 2015. In the email to the court covering the draft order, the Government Legal Department indicated that they understood the Developer wished to continue with the application to quash – but the Secretary of State did not propose to play any further part in the proceedings.[5]On 20 July 2015, without prejudice to the contention that it was unnecessary for the Developer to lodge an Acknowledgment of Service, the Developer issued an application for permission to acknowledge service out of time and, in any event, for permission to take part in the hearing of the application. The application was accompanied by a skeleton argument of Mr Kevin Leigh of Counsel, instructed by the Developer under the direct access provisions, which deals with both the application and the Council’s substantive challenge to the Inspector’s decision.[6]Therefore, at the hearing before me, the Council has been represented by Mr Jack Smyth of Counsel, and the Developer by Mr Leigh. The Secretary of State has neither appeared nor been represented.[7]In respect of the Developer’s application to participate in the hearing, the Civil Procedure Rules are less than clear as to the procedural status of someone in the position of the Developer in this case. However, before me, Mr Smyth said that he was prepared to concede the procedural point and allow Mr Leigh to make submissions, and to contest the application on the merits alone. In the light of that concession, I can move directly to deal with the merits of the claim.

The Law

[8]The law is uncontroversial. The following propositions, relevant to this claim, are well-established. i) Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of “the development plan”, as well as “any other material consideration”. “The development plan” sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to include adopted local plans. ii) Section 38(6) of the 2004 Act provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, but that presumption is rebuttable by other material considerations. iii) “Material considerations” in this context include statements of central government policy which are now largely set out in the National Planning Policy Framework (“NPPF”), effective from 27 March 2012. I deal with the position of a pre-existing development plan after the introduction of the NPPF at paragraphs 13-15 below. iv) The true interpretation of policy, including the NPPF, is a matter of law for the court to determine (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). v) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). vi) An inspector’s decision letter cannot be subjected to the same exegesis that might be appropriate for a statute or a deed. It must be read as a whole, and in a practical, flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector’s enquiry, so that it is not necessary to rehearse every argument but only the principal important controversial issues. The reasons for an inspector’s decision must be intelligible and adequate to enable an informed observer to understand why he decided the appeal as he did, including his conclusions on those issues. They must not give rise to any substantial doubt that he proceeded in accordance with the law, e.g. in his understanding the relevant policies (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; Bolton Metropolitan Borough Council v Secretary of State for the Environment [1995] 71 P&CR 309 at page 314; South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at pages 82H, 83F-G per Hoffmann LJ; and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown). vii) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.

Relevant National Policies

[9]The relevant national policies are set out in the NPPF.[10]As I recently emphasised in Exeter City Council v Secretary of State for Communities and Local Government [2015] EWHC 1663 (Admin) at [11]-[12], “sustainable development” is at the heart of the NPPF. There is no specific definition of “sustainable development”, but it is to be defined in terms of development which meets the needs of the present without compromising the ability of future generations to meet their own needs. That is reflected in the first words of the Ministerial Foreword to the NPPF, which state:
“The purpose of planning is sustainable growth. Sustainable means ensuring that better lives for ourselves don’t mean worse lives for future generations. Development means growth. We must accommodate the new ways in which we will earn our living in a competitive world. We must house a rising population…”
. It is said in paragraph 6 of the NPPF that the policies set out in paragraphs 18-219, taken as a whole, constitute the Government’s view of what sustainable development means in practice for the planning system. “Sustainability” therefore inherently requires a balance to be made of the factors that favour any proposed development, and those that favour refusing it, in accordance with the relevant national and local policies. However, the NPPF provides for a number of presumptions as to where the balance might lie.[11]Paragraph 14 provides, so far as relevant to this claim:
“At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. … For decision-taking this means [unless material considerations indicate otherwise]: ● approving development proposals that accord with the development plan without delay; and ● where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless –– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or –– specific policies in this Framework indicate development should be restricted…”
. For decision-taking this means [unless material considerations indicate otherwise]: ● approving development proposals that accord with the development plan without delay; and –– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or –– specific policies in this Framework indicate development should be restricted…”.

● approving development proposals that accord with the development plan without delay; and

[12]Part 6 of the NPPF deals with “Delivering a wide choice of high quality homes”. The identification of sites for future housing provision is dealt with in paragraphs 47-49. Paragraph 49, so far as relevant to this claim, states:
“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.”
[13]In respect of decision-taking in individual applications, paragraphs 47 and 49 of the NPPF are particularly relevant in the absence of a demonstration of a particular level of supply of deliverable housing sites. If the authority cannot demonstrate a five-year plus buffer supply of housing land at the time of a decision for specific housing development, then that weighs in favour of a grant of permission. In particular, in those circumstances, relevant housing policies are to be regarded as out-of-date, and hence(i) they are of diminished weight; and(ii) there is a presumption of granting permission unless the adverse impacts of granting permission “significantly and demonstrably” outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event.[14]That was confirmed in R (Hampton Bishop Parish Council) v Herefordshire Council [2014] EWHC 3947 (Admin). Richards LJ (with whom Etherton and Christopher Clarke LJJ agreed) considered the application of section 38(6) in the light of City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, and continued:
“28. …. It is up to the decision-maker how precisely to go about the task [i.e. his task under section 38(6) of the 2004 Act], but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan. I say ‘as a general rule’ because there may be exceptional cases where it is possible to comply with the section without a decision on that point: I have in mind in particular that if the decision-maker concludes that the development plan should carry no weight at all because the policies in it have been overtaken by more recent policy statements, it may be possible to give effect to the section without reaching a specific decision on whether the development is or is not in accordance with the development plan. But the possibility of exceptional cases should not be allowed to detract from the force of the general rule. 29 … 30. The relevant principles were not affected by the introduction of the NPPF. That document refers in terms, at paragraphs 11-13, to section 38(6) of the 2004 Act and states that the NPPF does not change the statutory status of the development plan as the starting point for decision making: proposed development that accords with an up-to-date local plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It states that the NPPF constitutes guidance for local planning authorities and decision-makers both in drawing up plans and as a material consideration in determining applications. Whilst it is clear from other passages that the policies in the NPPF may affect the weight to be given to policies in the development plan, the duty to determine applications in accordance with the development plan unless material considerations indicate otherwise remains the same.”
[15]Thus, in respect of housing provision, the NPPF has effected a radical (generally, pro-housing development) change from the previous policy (Solihull Metropolitan Borough Council v Gallagher Estates Limited and Lioncourt Homes Limited [2014] EWCA Civ 1610 at [7]-[16]). However, the NPPF does not emasculate housing policies in an out-of-date development plan: in addition to the presumption created by paragraphs 14 and 47-49, it simply affects the weight attributable to those policies.[16]Two other provisions of the NPPF are relevant to this claim.[17]First, paragraph 215 states that due weight should be given to relevant policies in already existing plans according to their degree of consistency with the NPPF.[18]Second, paragraph 55 provides:
“To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as: • the essential need for a rural worker to live permanently at or near their place of work in the countryside; or • where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or • where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or • the exceptional quality or innovative design… ”
.

The Local Development Plan

[19]At the time of the Inspector’s decision, as she identified in paragraph 6 of her decision letter, the development plan for the area in which the Site is situated comprised the saved polices from the 2006 Local Plan. The policies were saved as a result of express Government pronouncement in July 2009. By 2014-15, this plan was, of course, of some age; and the Council was in the process of preparing a new South Worcestershire Development Plan although, at the time of the Inspector’s decision, that had not been adopted and indeed was still under examination in the course of the usual adoption process.[20]Three polices within the Local Plan were identified as relevant to the Inspector’s consideration of the section 78 appeal. Policy DS1 stated, amongst other things, that:
“Development will be directed to sustainable locations most appropriate to the form and scale of development proposed on the following bases: … (d) Development within open countryside (beyond settlement limits as defined on the Proposals Map) will be strictly controlled. Development will be limited to those exceptions established within the Local Plan, which can only be located within open countryside and which maintains or enhances the landscape character and biodiversity of the area.”
At the time of the adoption of the Local Plan, it seems that there was no foreseeable need or justification for development on greenfield land outside the existing urban areas (paragraph 2.2.2), and indeed very limited need for any development in the open countryside. Policy DS14 defined “open countryside” by reference to areas outside the settlement boundaries as shown on the Proposals Map; and restricted development in open countryside to particular types of development. The Site falls within open countryside, and the proposed development does not fall within any identified exception where development will be allowed. Policy DS12 restricted residential development to particular types of development by reference to categories of settlement. It is in open countryside, and so is a category 4 settlement. The proposed development of the Site does not fall within any category 4 exception.

The Inspector’s Decision

[21]At the Developer appellant’s request, the Inspector dealt with the section 78 appeal under the written representation procedure. There was therefore no hearing before her, although she did conduct a site visit on 19 January 2015.[22]In her decision letter of 17 February 2015, she identified the main issue in the appeal as: “… whether the development proposed would be consistent with the principles of sustainable development having regard to the [NPPF] and the development plan” (paragraph 5).[23]She noted the requirements of Section 38(6) of the 2004 Act and paragraph 49 taken with paragraph 14 of the NPPF as follows:
“6. Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. The development plan comprises the saved policies of the [Local Plan]. 7. However, the Council confirm that they cannot demonstrate a five year housing land supply. Under these circumstances, the [NPPF] states that there is a presumption in favour of sustainable development. Where, as in this case, relevant policies are out-of-date, permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the [NPPF] taken as a whole, or specific policies in the [NPPF] indicate development should be restricted. Sustainable development includes economic, social and environmental dimensions, which are mutually dependent.”
[24]She proceeded to consider matters such as accessibility, before concluding as follows:
“16. To conclude on this main issue, I consider the proposal to amount to a sustainable development. With respect to the provisions of paragraph 14 of the [NPPF], the adverse effects of granting permission, in particular in terms of the limitations of accessibility of locals services by foot, does not significantly and demonstrably outweigh the benefits when assessed against the policies of the [NPPF] taken as a whole. 17. Therefore the proposed development complies with Local Plan Policies DS1, … DS12 and DS14 relating to settlement hierarchy and focusing development in sustainable locations which are accessible by a choice of means of transport and not rely solely for access on the private car.”
[25]She concluded (in paragraph 25):
“For the reasons set out above, I find there are no adverse environmental impacts that would demonstrably outweigh the presumption in favour of sustainable development. Nor do I find that the proposal would conflict with specific policies in the [NPPF] which indicate that development should be restricted.”
[26]She thus allowed the appeal, and granted the consent sought.

The Grounds of Challenge

[27]I now turn to the grounds of challenge. I will take Grounds 1 and 2 together.[28]As I have described, in paragraph 17 of her decision letter, the Inspector found that the proposed development complied with Local Plan Policies DS1, DS12 and DS14. In respect of those policies, Mr Smyth submitted: i) Policy DS1 states that development in the open countryside beyond the settlements, as defined on the Proposals Map, will be strictly controlled and limited to those exceptions established within the Local Plan. It was uncontentious that the Site falls within open countryside, as defined in the Local Plan. The proposed development falls within none of those exceptions. ii) Policy DS12 restricts development in a category 1 settlement to identified exceptions. The proposed development falls within none of those exceptions. iii) Policy DS14 restricts development in open countryside to identified exceptions. The proposed development falls within none of those exceptions. The proposed development is therefore (he submitted) in unarguable conflict with these three policies, and the Inspector either misunderstood the policies or irrationally applied them. On any view, she could not lawfully have concluded that the development was in compliance with them. That is Ground 1.[29]Alternatively, if there is some possible rationale for concluding that the development did comply with these policies, the Inspector did not give reasons for her finding that they did. As no party suggested compliance, it was incumbent upon her to provide such reasons. That is Ground 2. It was upon this ground that the Secretary of State conceded the claim.[30]In his skeleton argument (at paragraph 23.1), Mr Leigh conceded that, “at first blush one might be forgiven [for thinking] that there was something in [these] grounds”, a concession repeated before me today. Nevertheless, he submitted that, on scrutiny, the grounds were bad, on the following basis. Before the Inspector, the Council placed no reliance on the out-of-date Local Plan housing policies. The exclusive focus of both parties was on the NPPF; and, in particular, the approach in paragraphs 14 and 47-49. Under those, because the housing policies were deemed out-of-date as a result of the failure of the Council to demonstrate a five year housing land supply, there was a presumption in favour of granting permission unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. The submissions before the Inspector – and her decision letter – therefore focused on sustainability in terms of this balance. The out-of-date housing policies were not determinative of, or even relevant to, this balance. On a fair reading of the decision letter as a whole, the Inspector came to the conclusion that the rationale behind the policies, namely sustainable development, “albeit on a locational basis according to the [Local Plan] hierarchy”, was satisfied.[31]I am afraid I am unconvinced by those submissions. i) The three policies DS1, DS12 and DS14 were Local Plan saved policies. They were thus part of the development plan. ii) Because the adoption of the Local Plan policies preceded the NPPF, by paragraph 215 of the NPPF, the weight to be given to them correlated to the degree of consistency between them and the policies in the NPPF. iii) Furthermore, as a result of the lack of demonstrable five year housing land supply, under the NPPF those housing policies were deemed out-of-date. That did not render the policies irrelevant. They continued to be part of the development plan. Because the policies were out-of-date,(i) they were of diminished weight; and(ii) there was a presumption of granting permission unless the adverse impacts of granting permission “significantly and demonstrably” outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. iv) However, although thus constrained by the NPPF, the housing policies were still material considerations (see paragraphs 13-15 above). As such, they had to be taken into account. v) It is not true to say that these policies formed no part of the Council’s case before the Inspector: it was the Council’s consistent case that the proposed development was inconsistent with the Local Plan. For example, the notice of the proposed development in the local paper (The Malvern and Ledbury Reporter, 23 September 2013), placed under the Town and Country Planning (Development Management Procedure) (England) Order 2010, noted that the development was in departure from the Local Plan. The relevant parts of the Officers’ Report for the Council Planning Committee were before the Inspector as part of the Council’s statement of case. They identified a main issue as “whether the proposal complies with the relevant policies of the Development Plan and the [NPPF]” (emphasis added); and stated that “the development of the Site for residential purposes is contrary to the Development Plan” (emphasis again added). In its recommendation, that report referred specifically to the three policies, and specifically said that the development was contrary to each. The Council refused the planning application on the grounds that the Site “would be viewed in isolation away from the defined settlement”, and the Council considered it would conflict with policies DS1, DS12 and DS14. vi) In taking the three policies into account, the Inspector had to consider whether the proposed development was consistent or in conflict with those policies. She found the development was in compliance with them. On the material I have seen, although of course a matter of planning judgment, it is difficult to see how she could have arrived at that finding – but, at the very least, as the Secretary of State has himself accepted, if she were going to make that finding, she was required to explain the basis upon which she did so. Neither the Developer nor any other party had submitted that the development complied with these policies, nor of course did they suggest a basis for compliance. vii) Mr Leigh accepted that the Council raised location as a topic in its statement of case before the Inspector; and “the basis for its argument [was] obviously the out-of-date housing policies since reference is made to the appeal site being ‘outside any defined settlement boundary...’”. However, contrary to his submissions, (a) for the reasons I have given, the out-of-date housing policies with regard to locational hierarchy etc were still material considerations which the Inspector was required to take into account, and (b) the decision letter simply cannot fairly be read as indicating that the Inspector considered that the proposed development was sustainable “on a locational basis according to the [Local Plan] hierarchy”. She simply asserted in terms that the there was compliance with locational policies DS1, DS12 and DS14 – which is an entirely different thing – and gave no explanation as to why she had reached such a conclusion. viii) The weight given to Policies DS1, DS12 and DS14 compared with other material considerations was a matter for the Inspector as decision-maker. The finding with regard to compliance with those policies may or may not have been determinative; but it certainly cannot be said that, if the Inspector had brought her mind properly to bear upon the issue of whether the development complied with these policies, she would inevitably have come to the same conclusion on the appeal.[32]For those reasons, I consider the Secretary of State was unarguably right to have conceded this claim on the ground that, at the very least, the Inspector failed to give adequate reasons for her assertion that the development complied with the three policies. That was a material error on approach, and a material error of law.[33]I am consequently bound to quash the Secretary of State’s decision on the section 78 appeal.[34]In the circumstances, I need not further consider Ground 3.

Conclusion

[35]For those reasons, I grant this application. I quash the Secretary of State’s decision dated 17 February 2015 under section 78 appeal reference APP/J1860/A/14/222378 to allow the Developer’s appeal and grant planning permission. The appeal will be remitted to the Secretary of State for redetermination.

Cited in 1 later judgment