Eshton Gregory (Hebden Bridge) Ltd v Secretary of State for Communities And Local Government & Anor [2015] EWHC 3611 (Admin)

[2015] EWHC 3611 (Admin)Case No CO/3069/2015
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
PLANNING COURT
Venue LEEDS DISTRICT REGISTRY
SECTION 288 TOWN AND COUNTRY PLANNING ACT 1990
Venue Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Venue Leeds LS1 3BGDate 17 December 2015
Before
HIS HONOUR JUDGE ROGER KAYE QC(Sitting as a High Court Judge)
Between
ESHTON GREGORY (HEBDEN BRIDGE) LIMITEDClaimant
Counsel and Solicitors:Jonathan Easton instructed by Walker Morris LLP appeared for ClaimantGiles Cannock instructed by Government Legal Department appeared for DefendantHearing Hearing date: 30 th November 2015Hand down Judgment: 17 December 2015
JUDGMENTJudge Kaye QC:
[1]This is, in substance, an appeal (technically it is an “application” but in substance an appeal), under s 288 Town and Country Planning Act 1990 (“TCPA 1990”), against a decision made by the defendant Secretary of State’s Inspector dated 21 May 2015 to refuse planning permission in respect of an application by the claimant, Eshton Gregory (Hebden Bridge) Ltd, for development of land at the site of the former Hebden Bridge Fire Station, Valley Road, Hebden Bridge HX7 7BX (“the Site”).[2]The proposed development was for: “redevelopment of land to provide a mixed use development comprising:• Ground Floor A1 unit with ancillary space at first floor, with three apartments; and• Five townhouses.” (“the Proposed Development”)[3]The Ground Floor A1 unit was in fact for a Sainsbury’s store over an area of 460 sq m of retail floorspace.[4]The Site is located within the town centre of Hebden Bridge and also within a Conservation Area. It once formed the location of the Hebden Bridge Fire Station but the buildings were demolished in 2009. Following the demolition of the fire station buildings the Site was used (with planning permission) as a temporary parking area. This permission expired on 26 January 2014.[5]Meanwhile, on 5 November 2007 planning permission was granted for a development comprising two commercial units with 9 apartments above and 5 town houses. The commercial units envisaged a mixed broad range of commercial uses over a retail area of some 318 sq m of floor space. This permission expired after three years and was renewed on 24 December 2010 (“the 2010 Permission”). That too expired after three years, on 23 December 2013; hence the need for permission for the Proposed Development.[6]Although very similar, the immediately apparent differences between the 2010 Permission and the Proposed Development were• the difference in retail floor area (460 sq m (the Proposed Development) as opposed to 318 sq m),• one single retail commercial unit (the Sainsbury’s store) as opposed to the two commercial units with mixed commercial use, and• 3 apartments rather than 9 (the ground floor unit was to take up ancillary space on the first floor).[7]Application was made for the Proposed Development jointly by the claimant and Sainsbury Supermarket Ltd (“Sainsbury’s”) to the Calderdale Metropolitan Borough Council (“the Council”) on 10 December 2013 and validated by the latter on 16 January 2014.[8]The application was supported by a number of reports and statements including:• A Planning Report;• A design and Access Statement prepared by Colliers International (“Colliers”);• A Transport Statement prepared by Bryan G Hall (Consulting Civil and Transportation Planning Engineers) (“Bryan Hall”).[9]The application was supported by the Planning Officer’s Report (“the Officer’s Report”) dated 4 August 2014 which recommended approval and submitted to the Council members on 17 September 2014. The Officer’s Report included favourable comments from the Council’s Highways Network Manager.[10]Despite the favourable reports the Council (as it is common ground it was in law entitled to See, for example, R v East Sussex CC, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, at [32] per Lord Hoffman. ) refused planning for the following reasons:
“The proposal fails to provide adequate facilities for service delivery vehicles leading to an increased likelihood of such vehicles obstructing the free and safe flow of traffic on Valley Road which will be detrimental to highway safety. The proposal is therefore contrary to Policy BE5 (The Design and Layout of Highways and Accesses) and Policy S2 (Criteria for Assessing Retail Developments) of the Replacement Calderdale Unitary Development Plan, which seek to ensure the free and safe flow of traffic in the interests of highway safety; and seek to ensure that developments do not create unacceptable traffic problems.”
[11]The claimant then appealed against this decision to the Secretary of State under s 78(1)(a) TCPA 1990. The Secretary of State may allow or dismiss the appeal, reverse or vary any part of the decision and may deal with the application as if made to him in the first instance (see s 79(1) TCPA 1990).[12]The Council contested the appeal and defended its decision. The appeal was determined, on written representations, by an Inspector appointed by the first defendant, i.e. the Secretary of State, namely by Anne Jordan BA, MRTPI (“the Inspector”). The Inspector also conducted a site visit on 30 April 2015, as she put it in her decision letter of 21 May 2015 (“the Decision Letter”) at “mid-morning on market day”. In addition to the material already submitted to the local planning authority, statements from Colliers, on planning issues, and Bryan Hall, on highway matters, supported the appeal.[13]The Inspector dismissed the appeal, setting out her reasons in the Decision Letter.[14]The claimant seeks an order quashing this decision. The Secretary of State defends the decision in full.[15]I am grateful to counsel on both sides (Mr Jonathan Easton for the claimant, and Mr Giles Cannock for the defendant Secretary of State) for the full and helpful way in which the case has been presented. Fortunately there is, in this case, no disagreement as to the relevant legal framework.[16]The relevant statutory framework, so far as material may be summarised as follows for present purposes:• Section 57(1) TCPA 1990 requires planning permission for any “development”. This is in turn defined by s 55(1) as “the carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material change in the use of any buildings or other land”.• In dealing with the application for planning permission, s 70(2) TCPA 1990 requires the local planning authority and the Secretary of State to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.• Section 38(6) Planning and Compulsory Purchase Act 2004 (“P&CPA 2004”) provides that, if regard is to be had to the development plan for the purpose of any determination for planning permission, that determination must be made in accordance with the development plan, unless material considerations indicate otherwise.[17]Further, article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No. 2184) (in force at the time of the Council’s refusal for permission, but now superseded by the Town and Country Planning (Development Management Procedure (England) Order 2015 (SI 2015 No. 595)), provides (so far as relevant): “31.—(1) When the local planning authority give notice of a decision or determination on an application for planning permission … — …. (b) where planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision … “ [emphasis added][18]The relevant development plan in this case was the Replacement Calderdale Unitary Development Plan (“RCUDP”).[19]Whilst not exhaustive, it may be helpful at the outset to set out some of the main relevant applicable principles summarised (since they are generally well-known and established) as follows:• First and foremost an appeal to the High Court is not an opportunity to re-argue the planning merits of the case: Newsmith Stainless Steeel Ltd v Secretary of State [2001] EWHC 74 (Admin). It must be remembered that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State: Tesco Stores v Secretary of State [1995] 1 WLR 759 at 780 per Lord Hoffman.• Nevertheless the court can interfere if the decision maker has taken into account a consideration which is immaterial, or failed to take into account one which is material: Ashbridge v Minister of Housing [1965] 1 WLR 1320 at 1326 Lord Denning MR;• An important example of the kind of material considerations to which the Inspector would be required to have regard in determining the planning appeal generally includes the National Planning Policy Framework (“NPPF”), where, of course, relevant: Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin), at para. 14. But the fact that a particular policy is not mentioned in a decision letter does not necessarily mean it has been ignored, as it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors: Sea Land Power & Energy Ltd v Secretary of State [2012] EWHC 1419 (QB) at para. 58 per Lang J;• The interpretation of policy in its proper context is a matter for the courts: Tesco v Dundee CC [2012] UKSC 13, per Lord Reed at [19]-[23] but once properly understood, the application of policies is a matter of planning judgment for the decision maker (subject to the test of irrationality): Tesco (above) at [20]-[21];• The existence of a prior planning permission may also be a material consideration, albeit with less force, if time-expired, for the purposes of achieving consistency in decision-making: South Oxfordshire DC v Secretary of State for the Environment [1981] 1 WLR 1092 at 1096 per Woolf J (as he then was). Ultimately it is a matter of judgment for the Inspector;• The Inspector of course is bound to give adequate reasons for the decision (see Rule 18 Town and Country Planning (Inquiries Procedure)(England) Rules 2000 (SI 2000 No 1624)). But it is of crucial importance to remember that a decision letter must be read as a whole, in a straightforward manner, sensibly, and in good faith, recognising that it is addressed to the parties who are generally well aware of the issues involved and arguments advanced. The reasons (which can be briefly stated) need only refer to the main issues in the dispute, not every material consideration: see South Buckinghamshire DC v Porter (No. 2) [2004] UKHL 33, per Lord Brown especially at para. 36. The decision letter is not to be treated as legislation or an exam paper: see South Somerset DC v David Wilson Homes (Southern) Ltd (1993) 66 P&CR 83 at 85, Hoffman LJ and Clarke Homes v Secretary of State (1993) 66 P&CR 263, at 271-272. It should also, when considering the decision letter, be borne in mind that the inspector’s conclusions will be based not merely on the material contained in or with the written representations but also the impressions received on a site visit or inspection: Newsmith (above) at para. 8 per Sullivan J.[20]The Inspector in her Decision Letter recorded in opening as follows:
“2. I have read the various submissions made in relation to the proposal, including the main parties’ statements. Although the Council’s reason for refusal does not specifically mention the issue of parking, it is a concern for many of those who commented on the application. It is also a matter which the appellant has specifically responded in his statement of case. 3. Accordingly, I consider the main issue for the appeal to be the effect of the proposal on highway safety, including the loss of parking.”
[21]Among the factors she noted based on the material provided to her and her Site visit were the following:• The Site was close to the town centre, surrounded on three sides by narrow streets subject to controlled parking with a mix of retail, office, residential and community uses;• The Site previously had consent for use as a temporary car park and was, at the time of her visit, also being used for parking (albeit it no longer had planning permission) and was fully parked at the time of her visit as were controlled bays on surrounding streets effectively making a road alongside the Site a single carriageway requiring cars and vans to enable traffic approaching (from the other direction) to get through. Spaces along the adjoining road had been cordoned off to allow safe access to this temporary car park;• The area in and around the Site experienced significant parking pressure, leading to congestion on surrounding streets, impeding free flow of traffic;• The parties agreed the store would routinely receive deliveries from larger vehicles (from 6am to 10am and 5pm to 7pm – coinciding with peak travel times) requiring a loading bay to the front of the Site and also requiring amendment to on-street parking requiring the loss of three parking spaces and the restriction (during delivery times) of a further four spaces. Even if such parking restrictions were implemented by means of a Traffic Regulation Order, the availability of the loading bay to the store could not be guaranteed – it would also be available to other traders including market traders in and around the area;• Local roads were already used by heavy goods vehicles;• There was therefore a risk that deliveries to the Site would impede the flow of traffic on the highway at times when traffic would be at its highest and the proposed reduction in available on-street parking would be likely further to exacerbate existing parking pressure;• An A1 use in the proposed location would comply with local and national planning policy;• The proposal would preserve and enhance the character and appearance of the Conservation Area and the setting of a nearby listed building.[22]In dismissing the appeal, she nevertheless concluded:
“9. ….The proposal would fail to provide adequate servicing arrangements. It would lead to a small but nonetheless significant loss of on-street parking. It would exacerbate existing parking and congestion problems and would impede the free flow of traffic, causing inconvenience to road users. It follows that the proposal would conflict with policies BE5 and S2 of the [RCUDP] as it would fail to provide for the safe and fee flow of traffic. It would also conflict with guidance within the [NPPF] (the Framework) which seeks developments which accommodate the efficient delivery of goods and supplies. …. 12. The proposal would bring a vacant site back into use and it would provide additional consumer choice. It would also provide 8 new homes and provide 20 local jobs, in a sustainable location. Having regard to the impetus in the Framework for growth, these are matters to which I attribute significant weight. However, the effect of the proposal on the local highways network would also be significant and harmful. I therefore conclude that on balance, the harmful effects of the proposal on the local highway network outweigh the potential benefits of the scheme.”
[23]Mr Easton, for the claimant, based his attack on the Inspector’s decision letter on six separate grounds, though three of them (grounds 1, 2 and 6 set out below) he took together as his main argument which he summarised as a failure on the part of the Inspector to take into account properly or at all important or key aspects of national planning policy and guidance (reflected in the NPPF), particularly in relation to transport. It was, he pointed out, an “on balance” decision. The sole issue identified by the Inspector was the effect of the Proposed Development on highway safety, including car parking.[24]As to national planning policy he pointed out that para. 32 of the NPPF provided that “development should only be prevented or refused on transport grounds where the residual cumulative aspects of development are severe”. This represented a change from the previous approach contained in Planning Policy Guidance Note 13 (Transport) and the Department for Transport’s “Guidance of Transport Assessment” (2007) advocated that development did not leave the highway network any worse-off, i.e. a no worse-off approach as opposed to the severity test now put forward from March 2014.[25]His six grounds therefore were these:• First, the Inspector failed to consider adequately or at all national policy in relation to highway safety. In short, she failed, he argued, even to mention the word “severe” in the Decision Letter and failed to consider or apply the NPPF in this respect. She therefore failed to have regard to a most material consideration.• Second, the Inspector failed to consider the extent to which the policies in the RCUDP were consistent with the NPPF. As noted above the Inspector concluded that the Proposed Development was in conflict with policies BE5 and S2 of the RCUDP. The former provided that “the design and layout of highways and accesses should ensure the safe and free flow of traffic (including provision for cyclists) in the interest of highway safety”, the latter lists criteria applicable to retail proposals including that “the development creates no unacceptable, environmental, amenity, traffic, safety, or other problems”. The Inspector, argued Mr Easton, did not explain how the Proposed Development failed to accord with policy S2. Moreover neither of these policies complied with para. 32 of the NPPF in that neither contained a requirement that permission should be withheld only where the transport impact was “severe”. At best the Inspector characterised the impact as an “inconvenience” or impeding free flow of traffic, neither of which could be regarded as “severe”.• Third, the Inspector failed to consider whether the Proposed Development was sustainable within the NPPF. A presumption, submitted Mr Easton, in favour of sustainable development lies at the heart of the NPPF but the presumption can only apply to a development that is sustainable. Accordingly, the decision maker must reach an overall judgment as to whether the development is sustainable and whether the presumption applies. The Inspector, Mr Easton submitted failed to reach any finding as to the overall sustainability of the Proposed Development.• Fourth, the Inspector failed to take into account a material consideration, namely the 2010 permission that had been specifically drawn to her attention in the claimant’s Statement of Case put before the Inspector. Indeed, it was argued, despite this the Inspector made no reference to this or any other planning history of the Site.• Fifth, the Inspector failed to consider whether there was an alternative means of addressing the alleged harm (the traffic impact) from the grant of planning permission. In this respect the Inspector failed to consider whether the imposition of planning conditions such as to regulate delivery times reflected in a Delivery Management Plan put forward by the claimant would mitigate the adverse consequences on the flow of traffic associated with deliveries to the store. The Inspector even failed to mention the Delivery Management Plan.• Sixth, the Inspector failed to give adequate reasons for her decision. Here it was argued that having identified highway safety as a main issue she reached no concluded view as to whether the safety of road users would be severely affected.[26]For all these reasons, Mr Easton submitted, the decision of the Inspector should be quashed. The real gravamen or thrust of his argument was that, although the Inspector referred on a number of occasions, to the “significant” impact of loss of parking or the “significant” effect of the proposals on the highways network, this was not to be equated with “severe” and indeed reflected a lower threshold.[27]For the Secretary of State, Mr Cannock submitted none of these grounds justified allowing the appeal which, accordingly, should fail.[28]Mr Cannock emphasised that the Inspector’s Decision Letter must be read as a whole and sensibly. So read, overall he submitted that the essential basis of the Inspector’s decision to refuse permission was as follows:• Applying s 38(6) P&CPA 2004 (above), the proposal was in conflict with the local development plan (the RCUDP) policies BE5 and S2;• In accordance with that section, the Inspector then considered material considerations which could indicate or justify a departure from the development plan. One such material consideration lay in the provisions of the NPPF.• Whilst acknowledging the benefits of the Proposed Development, she nevertheless considered that by virtue of the impact on the local highway network being “significant and harmful”, the adverse impact outweighed the identified benefits and conflicted therefore with the requirements of the NPPF.• The claimant was simply therefore seeking a re-run of the planning merits of the appeal which was best left to those with the requisite degree of expertise, experience and skill, i.e. the Inspector.• She had all the relevant material before her and plainly had regard to it. She also had a Site visit.[29]As to the claimant’s 6 grounds of appeal:• First, he rejected the notion that the Inspector failed to have regard to the national policy in relation to highway safety or to the severity test. It is clear that the Inspector did have the policy in mind: she had read the parties statements, they were before her, she referred to the national framework policy in para. 9 of the Decision Letter (above), she referred to the harm to the highway network, that it would be “significant and harmful” and outweighed the “significant” weight attached to the benefits of the Proposed Development. In the context where NPPF 35 provided that “developments should be located and designed where practical to … accommodate the efficient delivery of goods and supplies” to suggest the Inspector disregarded the policy by failing to use the word “severe” or thereby somehow failed to adopt the severity test was forensic pedantry. The Inspector plainly thought that in this respect the Proposed Development was in conflict with the NPPF. In any event the claimant linked the severity test with significant harm itself by stating in para. 4.4 of the Statement of Case:
“there will be no significant risk of adverse impact on the safe and free flow of traffic and consequently there be no severe harm to the highway.”
[emphasis added]. • Second, the Inspector did not need to consider the extent to which the policies in the RCUDP were consistent with the NPPF. The Inspector noted that the Proposed Development was in conflict with both the RCUDP and NPPF: both policies supported refusal. Moreover the claimant again in its Statement of Case pointed out that whilst the CRUDP preceded the NPPF, the policies of the former were consistent with the aims of the latter. As to the failure to address issues of severity, the same argument as above applied. • Third, Mr Cannock accepted the basis for the submission, namely that there was a presumption in favour of sustainable development (NPPF, para. 14). It was clear the Inspector had the NPPF in mind: as well as the reference in para. 9 of the Decision Letter, she also referred to the impetus in the Framework (i.e. the NPPF) for growth in para 12 of the Decision Letter. However, as the Policy pointed out, for the decision-maker this meant approving proposals that accorded with the development plan (NPPF 14). As para. 9 of the Decision Letter also made clear the Inspector did not consider that the Proposed Development was in accordance with the development plan as set out in the CRUDP. Further, in deciding that the harm outweighed the benefits, the Inspector clearly demonstrated that she did not regard the Proposed Development as sustainable. • Fourth, whilst accepting that the 2010 permission was a consideration that “may” be relevant to achieve consistency (see South Oxfordshire DC (above)), since the permission had expired, it was a matter for the judgment of the Inspector. It was never an issue between the parties. The 2010 scheme was different from the present proposal and had been granted before the NPPF was published. • Fifth, again read as a whole the Inspector plainly had regard to all the material before her, including all the claimant’s proposals and submissions for alleviating harm. She referred to the possibility of a Traffic Regulation Order so plainly had the claimant’s submissions in mind. • Sixth, whilst it is true the Inspector did not mention personal safety or the potential for personal injury, the context was clear: the main issue was highway safety but in the broader sense of the effect of the proposal on the local highway network in all respects.[30]I hope I will be forgiven for summarising the respective submissions on each side as succinctly as possible as set out above. I have to say, however, that I accept Mr Cannock’s submissions in full. The Inspector’s Decision Letter is short, clear, succinct and in my judgment having regard to the principles I have set out above shows no evidence of unlawfulness or irrationality.[31]Mr Easton did his magnificent best to cut down the Inspector’s decision. At times however I felt I was subjected to some kind of learned treatise worthy of the old days of the Chancery Courts: this or that matter had not been stated, such and such a word or policy had not been mentioned. The most severe criticism was the alleged failures to have regard to the “severity” test i.e. that the Inspector had totally failed to mention NPPF, para 32 that “development should only be prevented or refused on transport grounds where the residual cumulative aspects of development are severe”. As Mr Cannock pointed out, it was obvious from reading the Decision Letter and having regard to the copious material before her and submissions made in the representations to her that the Inspector cannot have failed to have regard to this policy. She repeatedly used the word “significant” and used it in the context of the “significant and harmful” effects of the Proposed Development on the local highways network, i.e. on local highway safety. It is indeed reasonable to suppose she was well aware of the Framework document to which she referred (i.e. the NPPF).[32]I remind myself of what Lord Brown said in South Buckinghamshire DC v Porter (No. 2) [2004] UKHL 33, at paras 35-36 which seems especially pertinent to this case where he said this::
“35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit. “36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[33]I am not satisfied that the claimant is so prejudiced in this case. Disappointed, I can understand, but in my judgment the decision was clear, compelling and none the worse for being short. The Inspector submitted clear and compelling, reasoned reasons for dismissing the appeal. Planning matters were matters for her judgment. She had a copious quantity of material before her and written representations to study and consider. She had a site visit and opportunity to see the problems and challenges it and the local highway network presented. There was nothing unlawful or irrational about her decision or the content, form and manner of her conclusions.[34]For these reasons I dismiss the appeal or, in other words, the application.