Moulton Parish Council & Anor v Secretary of State for Communities and Local Government, Court of Appeal - Administrative Court, May 09, 2017,  EWHC 1047 (Admin)
|Resolution Date:||May 09, 2017|
|Issuing Organization:||Administrative Court|
|Actores:||Moulton Parish Council & Anor v Secretary of State for Communities and Local Government|
Neutral Citation Number:  EWHC 1047 (Admin)
Case No: CO/5130/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE GILBART
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Christopher Boyle QC and Andrew Parkinson (instructed by Boodle Hatfield LLP) for the Joint Claimants
Richard Moules (instructed by Government Legal Department) for the Defendant
The First Interested Party did not appear and was not represented
David Elvin QC and Luke Wilcox (instructed by Bracher Rawlins LLP) for the Second Interested Party
Hearing date: 4th April 2017
MR JUSTICE GILBART :
ACRONYMS USED IN JUDGMENT
If the Claimants' case in this matter is well founded, the Secretary of State has performed a complete and unexplained volte face in his assessment of the highways impacts of a housing development in Newmarket, and has also failed to apply his own National Planning Policy Framework, which should lead to the quashing of his refusal to grant planning permission for the development. The Secretary of State, supported by those representing some of the horse racing industry, who oppose the development, deny those claims. The question in this litigation is whether he has done so.
These proceedings, made after a grant of permission by Dove J, relates to an application by the Claimants under s 288 TCPA 1990 to quash the decision letter (DL (2)) of the Defendant SSCLG of 31st August 2016 whereby he refused outline permission for the construction of up to 400 dwellings plus associated infrastructure at Hatchfield Farm, Fordham Road Newmarket. He did so against the recommendation of his Inspector, who had held a public inquiry over 11 days during the course of April and May 2015, and had reported to the SSCLG by 9th July 2015. The decision letter thus emerged after the matter had been with the SSCLG for over a year.
The claim is not resisted by FHDC, the local planning authority for the area.
In short terms, Newmarket is the largest town in the FHDC area. There is on any view a requirement for more land for housing and other economic development in the Forest Heath District. The local Parish Councils (of which Moulton is one) have for some time argued that growth should not be dispersed amongst the rural parishes, but should be concentrated in Newmarket. The NHG and some others are concerned that that may have an adverse effect on the horseracing industry that is based there. That is the background to this litigation.
The Claimants contend that the SSCLG has
i) failed to apply his own policies in NPPF;
ii) failed to have regard to his own previous Decision DL (1) where he had reached conflicting conclusions to those he now holds on matters relating to highway safety, or has reached a conclusion on safety without evidence, or which is irrational;
iii) misinterpreted relevant Development Plan policy as it relates to the horseracing industry.
The SSCLG and the NHG deny all those claims. FHDC do not oppose the claim. The second head of claim requires consideration of the two Inspector's Reports and Decision Letters of the SSCLG: both that under challenge, and that issued in 2012 on a larger scheme of development within whose application site the current application site lies.
I shall deal with the matter as follows
i) History of the proposal and of Development Plan allocations;
ii) NPPF policy;
iii) The Decision Letter (DL (1)) and first Inspectors Report (IR (1)), insofar as they may affect the issues in the current claim;
iv) The current proposal, including the case advanced at the inquiry;
v) The case for the LPA;
vi) The objections to the current proposal by NHG;
vii) The Inspector's Report (IR (2));
viii) The current Decision Letter (DL (2));
ix) The case for the Claimants;
x) The case for the SSCLG;
xi) The case for NHG;
xii) Discussion and Conclusions.
(i) History of the proposal and of Development Plan allocations
In May 2010, the LPA adopted a Core Strategy, which forms part of the Development Plan for the area. It included proposals for strategic growth allocations, including an urban extension for 1200 dwellings north east of Newmarket, which extension included the appeal site. A challenge was made in the High Court to the inclusion of those allocations (See Save Historic Newmarket Ltd & Ors v Forest Heath District Council & Ors  EWHC 606 (Collins J)). The claim was made by those apparently representing the horseracing industry, represented (like the NHG here) by Mr David Elvin QC. The effect was that those allocations, and the section of the Plan dealing with housing provision, were deleted from the Plan.
Of course, the absence of housing policies from the Development Plan after NPPF came into effect in March 2012 would prove very significant in policy terms, as will be described below.
Other policies in the Plan remained. IR (2) at -  provides a summary. They include policies
i) focussing development on the towns and key service centres (Vision 1);
ii) the development of Newmarket as a tourism, leisure and cultural focus while protecting its unique character (ECO 5);
iii) Spatial Objective H1 aims to provide enough decent homes to meet needs in the most sustainable locations;
iv) Spatial Objective H2 addresses the mix of housing, its design and accessibility;
v) Spatial Objective T1 looks to achieve more sustainable communities by ensuring that infrastructure, facilities and services are commensurate with development;
vi) Spatial Objective T3 supports strategic transport improvements in the District, including along the A 14 corridor;
vii) CS1 (CS stands for Core Strategy) sets out the spatial strategy. In Newmarket it included recognition of the importance of the horseracing industry, and also included provisions for growth in employment, retail and leisure uses, and housing on brown field land within the settlement (not forgetting that the effect of the High Court challenge had excised other parts of the allocations). Policy CS7 set a minimum of 6400 dwellings and associated infrastructure between 2001 and 20121, and a further provision of 3700 dwellings (with infrastructure) between 2012 and 2031, of which (CS9) set a target of 30% affordable dwellings on sites of 10 or more dwellings;
viii) CS12 dealt with strategic road improvements and sustainable transport. CS 13 dealt with developers making contributions to meet site specific requirements and create sustainable communities.
As appears below, FHDC is working on a Single Issue Review of its Housing Policies, dealing with overall housing provision and distribution, and with site allocations. It has published a preferred options document for consultation. The application site is proposed for mixed use development, including 400 dwellings.
FHDC and its neighbour St Edmundsbury BC adopted a Joint Development Management Policies Document (JDMPD) in February 2015. It is silent on the topic of housing, but it includes a number of policies summarised in IR (2)) at . One of its policies, DM48, is very relevant to one of the major issues at the inquiry. I shall set out its precise terms in due course. It seeks to avoid development which would have a material adverse impact on the horseracing industry unless the benefits would significantly outweigh the harm.
In March 2012, the SSCLG dealt with an appeal by one of the joint Claimants (Lord Derby) against the refusal by FHDC to permit a mixed-use development for up to 1200 dwellings, 36,000 sq m of B1 employment floorspace (of which up to 10,000 sq m would be B1 office floorspace), 1000 sq m of community facilities, up to 300 sq m of retail and food and drink use, a park and ride with 100 spaces, a reservation for a two form entry primary school and new accesses. That appeal site included the current application site.
The inquiry was heard in December 2011 by a very experienced Inspector, J.I. Macpherson. His report (IR (1)) was full and careful. He reported that permission should be refused on one ground alone, namely that the scheme was premature and should be considered through the development plan process. I shall set out more of the issues and conclusions presently. The inquiry was held in December 2011, before the publication of NPPF. Some mention was made by inquiry participants of its draft version. Paragraph 10 of DL (1) states that regard had been had to the draft of NPPF, which was published in July 2011, but that as it was still in draft form and subject to change, he had accorded its policies little weight. It is not otherwise referred to in DL (1).
One aspect of IR (1) was that representatives of the horseracing industry had objected to the proposal on the grounds of adverse effects in the horse racing industry, and in particular on the grounds that the crossing of roads by horses bearing the extra traffic generated by the proposal would be unacceptable. Those objections were rejected by both Inspector and SSCLG. The SSCLG also agreed with the IR that the development would have no adverse effect on the historic character of Newmarket or on the local economy.
At both the first and second inquiries, concern was expressed by the horseracing interests about the prospect of horses crossing Fordham Road on the Rayes Lane horse crossing. The then Appellant proposed improvements at that crossing. IR (1) and DL (1) considered that there was no reason to refuse permission on highway safety grounds. The SSCLG considered (DL (1) ) that the increase of traffic
``on the roads used or crossed by horses would be adequately mitigated in highway safety terms.''
The second and current application was made in outline form for up to 400 dwellings plus associated open space, and infrastructure and accesses. Its site falls within the site which was the subject of the first inquiry....
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