Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor, Court of Appeal - Administrative Court, October 06, 2017, [2017] EWHC 2448 (Admin)

Issuing Organization:Administrative Court
Actores:Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor
Resolution Date:October 06, 2017
 
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Neutral Citation Number: [2017] EWHC 2448 (Admin)

Case No: CO/457/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/10/2017

Before:

MR JUSTICE JAY

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Between:

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Mr Richard Kimblin QC (instructed by Irwin Mitchell LLP) for the Claimant

Mr Tim Buley (instructed by Government Legal Department) for the First Defendant

No appearance by the Second Defendant

Hearing date: 26th September 2017

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MR JUSTICE JAY:

A. Introduction

1. By this claim for statutory review brought under section 288 of the Town and Country Planning Act 1990 (``the 1990 Act'') with the permission of Lang J, the Claimant (``Gladman'') seeks the intervention of this Court to quash the decision of the First Defendant (``the Secretary of State'') given on 21st December 2016 dismissing Gladman's appeal against the refusal of the Second Defendant (``the LPA'') to grant planning permission for up to 180 dwellings, open space, associated infrastructure and highways access at a site called Land North of Lower Lane, Berry Hill, Coleford, Gloucestershire (``the site'').

2. The LPA's refusal to grant planning permission for this development was appealed to the Secretary of State's Inspector, Mrs K. A. Ellison BA MPhil MRTPI pursuant to section 78 of the 1990 Act. She opened a public local inquiry on 17th November 2015 which sat for 7 days and closed on 4th December 2015. On 22nd January 2016 the Secretary of State directed that he would recover and decide the appeal for himself under statutory powers.

3. The Inspector's report recommending the grant of planning permission was promulgated on 25th February 2016. The Secretary of State's decision letter rejecting the Inspector's recommendations and dismissing the appeal was not issued until 21st December 2016. This delay is regrettable but does not give rise to a separate ground of challenge.

4. The issues raised by this section 288 are narrow, thereby reducing the need for any extensive iteration of the facts. I derive all of the latter from the Inspector's comprehensive report. For reasons of economy, I will be referring to the numbered paragraphs in the Inspector's report as [X.Y], and to those in the Secretary of State's decision letter as [DLX].

B. The Inspector's Report

5. The site was described in detail at [2.1]. In broad outline, it comprises a number of fields currently in agricultural use occupying an area of 10.88 ha. The site is contiguous with the existing settlement boundary or built up area of Berry Hill; it is also close to the Wye Valley Area of Outstanding Natural Beauty. It was therefore obvious that one of the key issues for the Inspector to determine was the visual impact of the proposal and its effect on the landscape [10.1(i)].

6. Within the development plan two policies were relevant. Local Plan policy (R) F. Coleford 11, adopted in 2005 as part of the LPA's Local Plan, provides that an area of land between Berry Hill and Milkwall, and encompassing the site, will be retained primarily as open countryside. The LPA's Core Strategy, adopted in February 2012, included Policy CSP.1 which set out a wide range of matters to be considered, including the effect of any impact on the landscape; it also stated that development which is not able to be accommodated satisfactorily in respect of the various considerations will not be permitted.

7. The Inspector identified as one of the main issues in her Inquiry, ``[w]hether the Council can demonstrate a five-year supply of deliverable housing sites'' [10.1(v)]]. She subjected that issue to thorough analysis, and concluded at [14.51] as follows:

``On that basis, the supply of deliverable sites is likely to be in the region of 1,900 sites, which would be a substantial shortfall against the 2,544 required to meet the full, objectively assessed need.''

The Inspector did not consider it necessary to perform the basic arithmetic, but the parties point out that the resulting figure yields a housing supply of 3.73 years, subject to the observation that the Inspector has used the phrase, ``in the region of''. The substantial shortfall arises in the context of the National Planning Policy Framework which requires LPAs to promulgate housing policies operative over a five-year period.

8. The Inspector's overall planning judgment was that the proposal would be harmful in terms of its impact on the landscape and its visual effect. However exactly how this was quantified by her is immaterial for present purposes because (1) the Secretary of State did not materially disagree, and (2) in any event, no issue arises in this application in relation to the latter's assessments at DL18-23.

9. The critical section of the Inspector's report appears at [14.52] - [14.61]. The Inspector considered that the proposal would be contrary to the development plan to the extent that it was harmful to the landscape. Nevertheless, this conflict fell very much to the attenuated for the following reasons:

``14.53 ... However, whilst this policy [(R) F. Coleford 11] is primarily one for the protection of the countryside, it is undoubtedly also the case that its coverage was defined on the basis of settlement boundaries which have not been reviewed for some time. These boundaries were defined in the context of long outdated assessments of population and housing levels.

14.54 On that count, I consider that it is not consistent with NPPF. This has particular significance for this appeal because of the location of the appeal site, at the edge of one of the settlements. Given my findings as to the lack of a deliverable housing supply and the emphasis in NPPF on significantly boosting the supply of housing, this greatly diminishes the weight which the conflict with this policy should carry in the overall planning balance. In addition, since the conflict with CSP.1 is contingent on the conflict with policy (R) F. Coleford 11, the weight which that should carry in the planning balance should also be reduced.''

10. The Inspector concluded that the proposal was in conflict with emerging policies, but that the weight to be accorded to this (already reduced by the emergent nature of these policies) was further mitigated by the fact that the aims of the policy had not yet been assessed against the objectively assessed housing need (``the OAN'') [14.55]. Similar reasoning is apparent in relation to the ``best and most versatile agricultural land'' issue [14.56], although in that context mention was specifically made of the supply of deliverable housing sites falling ``well short'' of the OAN.

11. The Inspector further concluded that the proposal would bring ``a range of associated benefits'', all of which were in one way or another related to the substantial contribution it would make to addressing the shortfall in housing land supply, ``bearing in mind the high level of needs identified'' [14.57]. Then:

``14.58 In view of the reduced weight to be accorded to the conflict with the relevant development plan policies, I consider that these benefits would be more than sufficient to outweigh that conflict

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14.60 The balance in this case is whether the adverse impacts would significantly and demonstrably outweigh the benefits. To my mind, the adverse impact on the landscape would not be sufficient to significantly and demonstrably outweigh the range of benefits associated with the proposal, particularly the provision of market and affordable housing.

14.61 Although the proposal would be in conflict with relevant policies of the development plan, the weight to be attached to that conflict is diminished by reason of inconsistency between those policies and NPPF. Applying the presumption in favour of sustainable development, the harm to the landscape would not significantly and demonstrably outweigh the benefits of the proposal, especially in view of the contribution to housing in the context of the shortfall in deliverable sites. These considerations are sufficient to outweigh the conflict with the development plan.''

12. The Inspector accordingly recommended to the Secretary of State that the appeal should be allowed.

13. In her Costs Report issued on the same day as her substantive report, the Inspector explained as one of her reasons for refusing Gladman's application for costs on the grounds of unreasonable behaviour, the following:

``23. Secondly, the extent of the shortfall was a factor within the overall planning balance, particularly in relation to the weight which could be accorded to development plan policies which were partly reliant on settlement boundaries and in relation to the use of the best and most versatile agricultural land. In the context of the Council's case on landscape impact, a clear assessment of any shortfall was necessary in order to reach a balanced decision on the planning merits of the proposal.''

  1. The Secretary of State's Decision

    14. The Secretary of State agreed with the majority of the Inspector's planning judgments. I propose to identify his core reasoning and highlight the material differences. The following paragraphs of the Secretary of State's decision letter are relevant:

    ``DL25. The Secretary of State's conclusions on housing need and supply are set out below at paragraphs 29-30. He considers that taking these conclusions into account, and also taking into account the aims of paragraph 47 of the Framework, a need for housing has been demonstrated. However, he does not consider that this translates directly into a need for housing on this specific site. In view of the adverse impacts on landscape and visual effect which weigh against the use of this particular site for housing, he considers that the use of best and most versatile agricultural land carries moderate weight against the proposal.

    ......

    DL29. The Secretary of State has carefully considered the Inspector's...

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