Bovis Homes Ltd v Secretary of State for Communities & Local Government & Ors [2016] EWHC 2952 (Admin)

2016] EWHC 2952 (Admin)Case No CO/3029/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue The Royal Courts of JusticeDate Friday, 2 September 2016
Strand
London WC2A 2LL
BEFORE: MR JUSTICE HOLGATE
Between
BOVIS HOMES LIMITEDClaimantMILLER HOMESClaimantSECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTDefendantCHELTENHAM BOROUGH COUNCILDefendantLECKHAMPTON WITH WARDEN HILL PARISH COUNCILDefendantLEKHAMPTON GREEN LAND ACTION GROUP LIMITEDDefendant
Digital Transcript of WordWave International Ltd trading as DTI8th Floor, 165 Fleet Street, London, EC4A 2DYTel No: 020 7404 1400  Fax No: 020 7404 1424Web: www.DTIGLOBAL.com Email: TTP@dtiglobal.eu(Official Shorthand Writers to the Court)
MR R. KIMBLIN QC and MS T OSMUND-SMITH (instructed by Loxley) appeared for ClaimantsMR R HONEY and MR N WESTAWAY (instructed by the Government Legal Department) appeared for First DefendantDR A. BOWES (instructed by Leigh Day) appeared for Third and Fourth Defendants
JUDGMENT (Approved)
[1]MR JUSTICE HOLGATE: Bovis Homes Limited and Miller Homes Limited apply for permission to bring an application under section 288 of the Town and Country Planning Act 1990 to challenge a decision given by the First Defendant, the Secretary of State for Communities and Local Government, on 5 May 2016 dismissing an appeal against the refusal of planning permission for a mixed use development, which included 650 dwellings on land at Leckhampton, Cheltenham.[2]The hearing today is only concerned with the arguability of the proposed grounds. I am grateful to all counsel for the clarity with which they have set out their submissions, both in writing and orally, and in particular to Mr Kimblin QC, who has with commendable economy and precision identified the true points which his clients would wish to argue in contrast to the diffuse grounds which originally were presented to the court. Ground 2[3]I deal first of all with Ground 2, which essentially raises non-compliance with the consistency principle (with its accompanying duty to give reasons) as set out in the line of cases which includes North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137. It is submitted that there has been a failure to comply with that principle as regards two earlier planning decisions take together: first, the preliminary findings of the examining Inspector (“the Examiner”) on the Joint Core Strategy and second, the decision letter issued by the Secretary of State on the Brockworth site, which I believe lies about 4 kilometres away from the Claimants’ site.[4]Turning to the chronology, the Brockworth inquiry was held in July 2015. The Bovis inquiry was held in September through to 2 October 2015. The Inspector's report on the Brockworth inquiry was issued on 4 December 2015. The preliminary findings of the Examiner on the Joint Core Strategy, EXAM 146, were published on 16 December 2015. The Inspector's report on the Bovis inquiry was issued on 11 January 2016. The Brockworth decision letter was issued on 31 March 2016 and the Bovis decision letter followed on 5 May.[5]It is common ground that when he reached his decision on the Bovis appeal the Secretary of State did have before him the preliminary findings of the Examiner. During this hearing I was told that those findings were sent to him by the Claimants, albeit without any specific representations as to how they should be dealt with in their appeal. I am prepared to assume that the Brockworth decision letter should be treated as if it were also before the Secretary of State when the Bovis appeal was determined. Irrespective of whether or not it was specifically presented to him by the Claimants, both decision letters were signed by the same official. But I note that no submissions were made to the First Defendant about how the Brockworth decision should be treated in the Bovis appeal.[6]The consistency point that the Claimants seek to argue in relation to the Brockworth decision letter focuses upon the status given by the Secretary of State to the draft Joint Core Strategy as regards each of the two sites. It is common ground between the parties that in order for that matter to be evaluated, it is necessary to look firstly at what the Examiner said in EXAM 146. The Claimants place heavy reliance upon paragraph 4 of that document which contained an overall conclusion that "the thrust of the spatial strategy is sound." It is submitted that the weight to be attached to the strategy should have been similar in both of the decision letters. However, it is necessary to read EXAM 146 as a whole. In paragraph 4 itself it is to be noted that the Examiner encouraged the JCS authorities to give further consideration to some rebalancing of development towards Gloucester and Tewkesbury, on the basis that the draft JCS had proposed to meet a significant part of Gloucester's OAN through urban extensions to Cheltenham which instead might justifiably be located closer to Gloucester's urban edge. So, the Examiner’s endorsement of the draft strategy was not unqualified. But more pertinently when we turn to his specific conclusions on the Brockworth site, it is clear that the Examiner accepted that exceptional circumstances had been made out for the release of that site from the Green Belt without qualification. In part, that conclusion took into account the fact that the Green Belt function of the land was compromised by the A417 which severs it from the more extensive area of Green Belt lying beyond.[7]In the examination of the draft Joint Core Strategy there were no other issues affecting the allocation of the Brockworth site, such as the possible identification of “local green spaces” (“LGS”). By contrast, in relation to the Bovis site, the Examiner distinguished between that part of the allocation which lies within Tewkesbury from that part lying within Cheltenham. In addition, the Examiner was fully aware of the outstanding appeal in relation to the Bovis site (see paragraph 58 of EXAM 146). In paragraph 59, the Examiner said: "In summary, balancing the harms and the benefits of this site, in my judgment some residential development is justified on the Cheltenham part of the site. Nonetheless, this should not be on those areas that have high landscape and visual sensitivity. With this proviso, I am minded to find that the Cheltenham part of the allocation is sound. Submissions are invited from the JCS authorities only on what capacity is justified on this site in view of my comments." (quotation unchecked)[8]The question of visual sensitivity and landscape value was a matter which was considered in great detail by the Inspector dealing with the Bovis’s section 78 appeal. The other aspect of the Cheltenham part of the Bovis site concerned designation of “local green spaces”, where the Examiner concluded that there was a real justification for including a designation of LGS within the Cheltenham allocation. He requested the JCS authorities to consider putting forward areas for designation as LGS for him to consider. That conclusion is entirely consistent with the Inspector's view on Bovis’s section 78 appeal that as regards LGS policy, the proposal should be treated as premature in relation to the examination process. That is not a conclusion with which this court could conceivably interfere.[9]I then turn to the Brockworth Inspector's report in the context of the conclusions reached by the Examiner in EXAM 146. The arguments really centre on paragraph 15.80 of the Inspector’s Report. First, the Inspector considered the application of Green Belt policy and concluded that very special circumstances had been demonstrated in accordance with paragraph 88 of the NPPF. He then referred to two points which he regarded as being of particular importance in relation to the proposed housing. The second was that: "It is the case that the approach of the JCS is based on strategic allocations and associated alterations to the Green Belt and it adheres to the recognition of the planning merits of an urban extension north of Brockworth. Also, the Inspector for the JCS examination has indicated acceptance as to the question of exceptional circumstances. Bearing in mind that the JCS has been prepared so as to be broadly consistent with current national policy, this suggests that considerable weight should be attached to that broad approach and as a consequence the contribution which the application site is expected to make to the strategic planning of the area." (quotation unchecked)[10]It would appear that in the Brockworth appeal the Inspector had taken into account the conclusion which the Examiner had already expressed in an earlier document (ie. before EXAM 146 was issued) that there were exceptional circumstances to justify the release of the Brockworth site from the Green Belt. That is made clear in the Secretary of State’s decision letter. Then in paragraph 5 of his decision the Secretary of State explicitly referred to EXAM 146. He took the view that EXAM 146 did not raise any new matters that would affect his decision and consequently he had not circulated it for comment by parties at the inquiry. That is perfectly understandable in the context of that case because the key point to be gleaned from EXAM 146 in relation to the Brockworth site was exactly the same point as the Inspector in his report had derived from the earlier document issued by the Examiner.[11]At paragraph 8 of the decision letter the Secretary of State said that the JCS identified the land at Brockworth for housing with a capacity of 1500 units. The allocation was for substantially the same land as was the subject of the planning application before the Secretary of State. At paragraph 19 of his decision letter the Secretary of State said that because the proposal on the Brockworth site was in keeping with the emerging JCS, he agreed that the proposal should not be regarded as premature within the terms of paragraph 216 of the NPPF. There is no inconsistency between that opinion and the Secretary of State’s conclusion reached on the Bovis site, because the only prematurity issue found by the Inspector and the Secretary of State in the latter case related to LGS designation which, of course, was not an issue for the Brockworth site, whether in the Examination of the draft JCS or in the planning appeal on that site. The Secretary of State went on to say that overall he: "… concurs with the Inspector that as the consistent conclusion of extensive study of the past decade has been that the area represents a logical and acceptable option for the extension of a built up area, the planning policy context should be accorded significant weight. In this matter, the Secretary of State notes that the preliminary findings of the JCS examiner include that exceptional circumstances exist with the release of the proposed A4-Brockworth strategic development allocation site from the Green Belt and that its allocation is sound" (quotation unchecked)[12]As I have already explained, the Examiner’s treatment of the Bovis site contains nothing which resembled that reasoning. It is with those rather more detailed reasons in mind that one must approach paragraph 30 of the decision letter. When the material is read fairly and as a whole, it is not arguable that this was a decision which engaged the North Wiltshire line of cases on consistency at all. The circumstances were so different that there was no need for the Secretary of State to give any reasoning in the Bovis appeal decision distinguishing his decision on the Brockworth site. The lack of any relevant similarity must be obvious to the parties. I therefore conclude that Ground 2 is wholly unarguable. Ground 3[13]I next turn to Ground 3. This is concerned with the way in which the Secretary of State applied paragraph 14 of the NPPF. It is common ground that in the appeal before the Secretary of State, the presumption for “decision taking” in favour of granting planning permission for “sustainable development” was engaged and therefore it was a case where the presumption would be decisive unless overcome by either or both of two limbs. The first limb involves a balancing exercise which asks the question whether the adverse impacts of granting permission would significantly and demonstrably outweigh its benefits when assessed against the policies in the Framework taken as a whole. The second limb is rather different in nature. It simply states that “specific policies in this Framework” indicate that development should be restricted.[14]From the submissions I have heard today there is no dispute that if that second limb applies and is thought to be sufficient to justify refusal of permission, there is no need for the balancing exercise indicated by the first limb to be undertaken in order for permission to be refused. The two limbs are freestanding. There is an outstanding legal issue in other cases before the courts as to the approach to be taken to determine what kind of policies in the NPPF are to be treated as indicating that "development should be restricted" (in the light of footnote 9). It is said that decisions of the High Court are inconsistent on this point and I understand that the matter is to be considered by the Court of Appeal, I believe in the Watermead case. So there might have been a basis for granting permission for this application to proceed if the Secretary of State's decision had depended on the application of the “specific policies” limb of NPPF paragraph 14. However, the Defendant's decision did not so depend because he decided that the appeal should be dismissed in any event because it failed the test set by the first limb of paragraph 14. The Secretary of State endorsed the Inspector's conclusions towards the end of his report, starting with paragraph 219 and going through to paragraph 310.[15]I note that in paragraph 218 the Inspector summarised paragraph 14 of the NPPF. He then dealt with the “specific policies” limb in NPPF paragraph 14 identifying three policies which he considered to qualify under that limb and then said this: "If these do not prevail, then the balancing exercise should be carried out," that being a reference to the first limb by which the presumption might be overcome. Undoubtedly the use of the word "or" in NPPF paragraph 14 to link these two limbs makes it plain that they are alternatives. Therefore, one does not only reach the balancing exercise set out in the first limb of paragraph 14 if “specific policies” restricting development do not prevail. It is plain to me that the Secretary of State wisely did not endorse paragraph 218 of the Inspector’s report.[16]Instead, the Secretary of State went through a sequence of reasoning. He accepted that there was a lack of five years' supply of housing land and therefore the presumption in favour of sustainable development contained in NPPF paragraph 14 was engaged. In paragraph 31 of the decision letter he correctly summarised the two limbs by which that presumption might be overcome, noting explicitly that they were alternatives. At no stage in the decision letter did he use any language which might indicate a misinterpretation in that regard.[17]In paragraph 32 of his decision letter the Secretary of State undoubtedly concluded that the appeal should be dismissed because of the “specific policies” limb in paragraph 14. Then in paragraph 33 he went on to say this: "Finally, considering the balance of planning considerations in this case the Secretary of State agrees with the Inspector's assessment at paragraphs 306 to 309. Substantial though some of the benefits are, notably in terms boosting housing supply, the Secretary of state considers that some adverse impacts will significantly and demonstrably outweigh the benefits when assessed against the policies in this Framework taken as a whole." (quotation unchecked)[18]I am in no doubt whatsoever that DL33 was a freestanding reason for concluding that the presumption in favour of sustainable development was overcome. However, Mr Kimblin QC submitted that that balancing exercise was nonetheless tainted because of any arguable error affecting paragraph 32 of the decision letter. In my judgment the mere fact that the reasoning in paragraph 32 preceded that set out in paragraph 33 does not lend any support whatsoever to Mr Kimblin’s argument. First, the two limbs by which the presumption in NPPF paragraph 14 may be overcome are expressed in the policy to be distinct alternatives, second the Secretary of State explicitly adopted that approach (see DL 31) and third, the two limbs are of a very different nature. The first involves the carrying out of a balancing exercise; the other simply asks the question whether the development proposed is something which one or more “specific policies” of the Framework (eg Green Belt) indicate should be restricted, without requiring any separate balancing exercise to see whether the presumption in favour of sustainable development is overcome.[19]Furthermore, there is nothing in the decision letter to indicate that any conclusion expressed in paragraph 32 of the decision letter affected the weighing exercise carried out by the Secretary of State in paragraph 33 or, for that matter, the weighing exercise carried out by the Inspector when applying the first limb in his report. For those reasons, I am certain that even if there is an arguable error in paragraph 32 of the decision letter as to what policies may qualify as “specific policies” under the second limb, it is not arguable that this decision should be quashed under Ground 3 given the freestanding and untainted nature of paragraph 33 of the decision. Ground 1[20]There remains Ground 1. The starting point for this is paragraph 32 of the NPPF which gives guidance on the assessment of transport issues in planning decisions. They are to take account of three matters. The first relates to the taking up of opportunities for using sustainable transport modes so as to reduce the need for major transport infrastructure; the second relates to whether safe and suitable access to a site can be achieved. The Inspector in the Bovis case unequivocally concluded that the proposal complied with the first two matters. The conclusions of the Inspector and the Secretary of State adverse to the Bovis proposal rested on the third bullet point, the second half of which is the relevant provision. It reads:
"Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe."
[21]The complaint under ground 1 is that the Inspector and the Secretary of State, instead of applying that test in paragraph 32 of the NPPF, substituted a different and inappropriate test contained in circular 02/2013 at paragraph 9. The first part of paragraph 9 says that development proposals are:
"… likely to be acceptable if they can be accommodated within the existing capacity of a section … of the strategic network or they do not increase demand for use of a section that is already operating at or over capacity levels, taking account of any travel plan, traffic management and/or capacity enhanced measures that may be agreed." (quotation unchecked) The second part of paragraph 9 reads: "
However, developments should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe." (quotation unchecked)[22]It is common ground that that second part accords with the test set out in the third bullet of paragraph 32 of the NPPF. The first question is whether the first part of paragraph 9 purports to set up a separate test as a basis for rejecting development proposals. In my judgment it does not. What the first part does instead is to indicate circumstances, but not the only circumstances, in which development proposals affecting the strategic road network would be likely to be acceptable. In other words, the first part of paragraph 9 gives an example of circumstances where the second part would not be breached. On that straightforward reading, I reach the wholly unsurprising conclusion that the first part of paragraph 9 does not purport to set out a separate test, let alone one which would be inconsistent with the test contained in the second part.[23]Turning then to the Inspector's report, it is important, as always, to read the passages which the Claimant seeks to challenge in context. In this case the Inspector received representations from a wide range of parties which included the Parish Council and local objectors. So, for example, at paragraph 154 of his report, when summarising the case for the Parish Council, it can be seen that their objection related to the degree, the severity, of the existing congestion on roads. They objected to further development of the nature proposed which would add considerably to that congestion, even taking into account proposed mitigation measures.[24]Paragraph 198 of the report summarises the position that the County Council expressed in written representations. Much of their concern related to the A46 Shurdington Road, which I am told is not part of the strategic road network. But nevertheless the County Council explained that it suffers from recurrent congestion on a regular basis. Two junctions have capacity issues and the development would impact on the performance of those junctions. But the County Council took the view that the development was required only to mitigate its own impact, and there was no need to address existing capacity and congestion issues. On that approach the County Council indicated that taking into account the proposed mitigation measures, the residual cumulative impact of the development compared with what would happen anyway by 2023 would not be severe (see paragraph 200 of the Inspector’s report).[25]The Inspector dealt with these issues at paragraphs 221 to 238 of his report. He recorded in paragraph 221 the view of the appellants, that is to say Bovis and Miller, and also the local authority and the County Council, referring back to paragraph 118, for example, of his report that the development should be expected to do no more than "wash its own face" and not solve all existing unrelated problems. He contrasted that with the position of third parties pointing out that the existing situation into which the development would be placed is already not suitable in terms of highway capacity and that the future situation would be far worse, and therefore even less acceptable, as a location for the development of 650 dwellings. At paragraph 222 he explained why he was satisfied that the first two bullet points of the NPPF paragraph 32 were satisfied.[26]In relation to the issue in paragraph 221, and taking up the third bullet point of NPPF paragraph 32, the Inspector pointed out in paragraph 223 of his report that the Framework refers not simply to the additional impact of the scheme, as had been asserted by the appellants, but to residual "cumulative" effects, implying that it is the cumulative effect of all expected development which must be taken into account in context rather than just the individual contribution of each development in turn which is likely to be, as in the present case, marginal.[27]He referred to the National Planning Practice Guidance in a similar vein (paragraph 224). With these policies in mind and thus far without reference to circular 2/2013, he said in paragraph 225: "Whilst I can agree therefore that the development should not need to solve all existing unrelated transport problems, the existing or future "in any event" situation on the highway network is not an unrelated problem which evaluation of the proposed developments should ignore. It is a related problem which is highly pertinent to the evaluation of the current appeal proposal." (quotation unchecked) Put simply, he was saying that the effects of the proposed development could not be divorced from the existing context into which it was going to be inserted.[28]The Claimants have not put forward any challenge to paragraphs 221 to 225. It is not suggested that the approach taken by the Inspector in those paragraphs fell outside the ambit of the third bullet point of paragraph 32 of the NPPF. For my part, I do not consider it arguable that any such criticism could be made.[29]The challenge really starts with paragraph 226 where the Inspector referred to circular 2/2013 and said that although it only deals with strategic road network, its principles can have equal validity to the road network in general. The Inspector then accurately summarised the gist of paragraph 9 of the circular. Then in paragraphs 227 to 228 he set out the effects of the proposed development on the road network starting with Shurdington Road and then dealing with the consequences of the displacement of traffic, including the adverse effects which in his judgment they would give rise to.[30]In paragraph 227 the Inspector said: "Applying the principles of circular 2/2013, this alone would suggest that the appeal should be dismissed unless mitigation resolves the problem." (quotation unchecked) Read properly in context, in my judgment the Inspector was there reacting to this proposal in the context of the third bullet point in paragraph 32 (which he had just be discussing), and the problem, as he saw it, posed by the existing levels of congestion on local roads, matters to which he was entitled to have regard under the NPPF. In view of his earlier reasoning there was no need for the Inspector to rely in addition upon circular 2/2013, but it did serve to emphasise that the existing levels of congestion were relevant, and not irrelevant as some parties had contended, to determining whether there would be severe residual cumulative impacts in breach of paragraph 32 of the NPPF if the proposed development were to go ahead.[31]Between paragraphs 234 and 237 the Inspector made a number of observations as to why the proposal was unsound. The claimants seek to challenge paragraph 235, which reads: "The second observation I make is that even the County Highway Authority expects the measures proposed in this appeal to be effective only in reducing the residual cumulative impacts of the development to less than severe compared with what would happen anyway by 2023 [referring back to paragraph 200]. That is not the correct test, since the A46 Shurdington Road is already overloaded; applying the principles of circular DfT 02/2013 the development should not be permitted unless effective measures are taken to relieve or counter the existing overloading of Shurdington Road. Neither appellant nor the County Highway Authority claims that to be the case." (quotation unchecked)[32]However, when paragraph 235 is read in context, it is plain beyond argument that the Inspector was simply reacting to the stance which had being taken by the County Council in paragraphs 198 and 200 which, as I have pointed out already (paragraphs 25 to 27 and 30 above), were not in fact compliant with the test in the third bullet point in paragraph 32 of the NPPF. The conclusions of the Inspector, which he had already given in earlier parts of his report (see paragraphs 224 to 225 which are not challenged), could have been expressed entirely by reference to the NPPF without any need to refer to the circular. In my judgment there is no inconsistency between the circular properly read and what was said by the Inspector in those earlier paragraphs applying paragraph 32 of the NPPF. For these reasons I agree with Lewis J that paragraph 235 cannot be read as setting out some different and inappropriate test from that to be applied under NPPF paragraph 32. Ultimately, in paragraph 238 the Inspector explained that he had applied the “severe residual cumulative impact” test in paragraph 32 of the NPPF.[33]Furthermore, and in any event, it is also plain from paragraphs 14 and 32 of the Secretary of State’s decision letter that he correctly applied the “severe residual cumulative impact” test in the NPPF and not any different test. It cannot be said that the decision-maker has misinterpreted paragraph 32 of the NPPF. Nor can it be said that in using his judgment regarding the application of that test, he has misapplied it in such a way as to be open to challenge on public law grounds, notably irrationality (see Tesco Stores v Dundee City Council [2012] PTSR 983 at paragraph 19).[34]Mr Kimblin QC submitted that this matter ought to be argued at a substantive hearing if there was a real prospect of the court arriving at a different outcome, but having had the benefit of the very clear submissions this morning from all counsel, I am certain that that is not the case here.[35]The remaining aspect of ground 1 is a natural justice complaint that no opportunity was given to the parties to address the implications of circular 02/2013. Given my conclusion that the Inspector's conclusions did not involve the setting up of a separate test, it must follow, and it is not suggested otherwise, that the procedural unfairness allegation has no separate life. In view of the conclusions I have reached, ground 3 is not arguable.[36]Accordingly, for those reasons, the application for permission to apply is refused.