Stimpson, R (on the application of) v First Secretary of State

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision by an Inspector appointed by the first defendant dismissing the claimant's appeal against the second defendant's refusal to grant outline planning permission for residential development on a site at Foredown Road/Fox Way, Portslade.

2. The Inspector held a hearing into the appeal on 22nd January 2003. His decision letter is dated the 10 February 2003. The appeal site is within the built-up area of Hove as defined in the adopted Hove Borough Local Plan 1995. It is also within one of four sites which were allocated for residential development by Policy H5 in the local plan:

"The following four sites, shown on the Proposals Map, are allocated for residential development in accordance with the details set out below...

(c) The land at North Portslade known as the Western Piggy Bank Land in accordance with the detailed development brief for the site, if the existing planning permission is not implemented."

3. The appeal site was reserved in the development brief for community facilities. There were two briefs dated 1989 and 1993. It was agreed that the latter was the more relevant. It proposes a "reserve site" as follows:

"13.1 The Mile Oak area does not possess the full range of social, community or commercial facilities which are a necessary part of a large built-up residential area. Such facilities should include corner shop, post office, public house, and premises for play groups etc. The building of a further 370 houses or so in this area as a result of the development of the land at Foredown Hill will aggravate these deficiencies and create new demands for facilities of this nature therefore ... it is considered appropriate that the developer allocate a site within the development which will not be developed for housing, but will be reserved for facilities of this kind. This is also required under the Section 52 Agreement (with a supplemental Deed of Agreement dated 8th August 1991 allowing for ancillary residential accommodation.)

13.2 The most appropriate location for a reserve site is on relatively flat land, on the crest of Foredown Hill, in the south-east corner of the site. This site is ideally located by being at a major road junction and in the heart of a residential area of both existing and proposed housing. Outline planning permission has been granted for local shopping facilities. The East Sussex Family Health Services Authority has recently indicated that there is no current need for a GP Surgery on the reserve site."

4. The section 52 agreement dated 7th June 1990 was made between Hove Borough Council as the then local planning authority, Brighton Borough Council as the landowner, and Rayfair Limited, who had applied for planning permission to develop the western Piggy Bank Land. The agreement provided that the "Reserve Site":

"... shall not be used for residential development;

... will be allocated for community use which may be one or more of the following uses (subject to planning permission(s) first being obtained) shop, public house, doctors surgery, dentists surgery or similar development together with associated car parking facilities."

5. The second defendant refused planning permission for two reasons:

"1. The proposed residential use is contrary to the community use reserved for this site, under policy H5 of the Hove Borough Local Plan which requires the use of this land to comply with the detailed development brief for 'Land at Foredown Hill'.

2. The site for the proposed residential development has not been allocated for housing in either the Hove Borough Local Plan or the emerging Brighton & Hove Local Plan Second Deposit Draft. The site does not meet the definition of a 'windfall' site as set out in PPG3 'Housing'. The proposal would therefore result in residential development on a greenfield site contrary to guidance within PPG3 (2000) and policies S1 and H1 of the East Sussex and Brighton & Hove Structure Plan, EC1 and H5 of the Hove Borough Local Plan and policy HO1 of the Brighton and Hove Local Plan Second Deposit Draft 2001."

6. In his decision letter the Inspector said that the main issue was "whether the proposed development would be acceptable, having regard to development plan policies for the use of the land for community facilities."

7. In paragraphs 4 to 6 he identified the relevant development plan policies. He said that Structure Plan Policy S1 set out general criteria for all development. Amongst those criteria was:

"(e) efficient and effective renewal and re-use of existing premises and 'brown' sites, particularly in the urban area to reduce the need for greenfield sites; (l) protecting and enhancing the provision of open and green spaces and community facilities in towns and villages where these are recognised as being of importance for environmental and/or community purposes."

He said this of policy H9:

"Policy H9 encourages the recycling of existing developed land for housing, including the adaptation or redevelopment of sites clearly demonstrated to be redundant for continued commercial and/or industrial use."

In paragraph 6 he said:

"Local Plan Policy BE1 sets general guidelines for development. Policy H1 indicates the land supply availability for new housing. Policy H5 states that the land known as Western Piggy Bank Land (which includes the appeal site) is allocated for residential development in accordance with the detailed development brief for the site. Policy C2 indicates that community facilities which generally serve the immediate needs of an area will be permitted in residential areas, while Policy C3 discourages development involving the loss of community facilities unless suitable alternatives are provided. Policy EC1 deals with sustainable development."

8. In paragraphs 7 to 9 the Inspector referred to certain policies in the emerging Brighton & Hove Local Plan, but said that since the final form of such policies could not be anticipated with certainty, he attached little weight to them. In paragraphs 10 and 11 the Inspector described the site and the proposed development, noting that part of the site was proposed to be set aside for a meeting hall which was not included in the application. Paragraph 12 summarised the terms of the section 52 agreement.

9. Thus far, Mr Alesbury, on behalf of the claimant, made no criticism of the decision letter. His first ground of challenge was based on the Inspector's approach to the section 52 agreement in paragraph 13 of the decision letter:

"The appellant states that the originally intended use of the appeal site is now redundant, and that in such circumstances the standard practice of local authorities is to release the covenants imposed by Section 52 agreements. However no evidence has been presented of any negotiations between the appellant and the Council for the modification or discharge of the agreement. The agreement therefore remains valid and I attach much weight to it."

10. The Inspector summarised the terms of the planning brief in paragraph 14, and said in paragraph 15 that because it had been taken into account in the adoption of policy H5 in the local plan he would accord it "significant weight".

11. Having set the scene by referring to the development plan, the emerging local plan, the section 52 agreement and the development brief, the Inspector continued in paragraph 16:

"Previous permissions granted in 1991 for a shopping centre with a possible medical centre and security flat, and in 1996 for shops, parking, access and boundary walls have not been implemented. The appellant states that the unviability of these proposals demonstrates the lack of need for such facilities in this area, and that there is now no requirement for a community use on the land which has been vacant for several years."

12. In paragraphs 17, 18 and 19 the Inspector considered various community uses which had been put forward by either the second defendant or local residents. He concluded that the likelihood of a shop being built on this location was "questionable" (para 17), that the level of support for community facilities among residents "is likely to be low" (para 18), and that the use of a site for a public space would be a community facility, but that it did not form part of the appeal proposals (para 19).

13. Paragraphs 20 to 24 of the decision letter are as follows:

"20. No planning permission granted has ever been implemented and none remains extant. I do not consider that merely because permissions for development have been granted in the past, or because of the adjacent developed land, that the site should be considered as previously developed. The site has never been developed and is, in my opinion, a greenfield site. It cannot therefore be regarded as a windfall site in terms of PPG3 as it is not previously developed land. There is therefore an objection to the proposal in terms of national policy guidance.

21. At the Hearing the Council stated, and the appellant did not dispute, that there was an adequate supply of housing land within the city, and consequently there was no pressure for plots such as the appeal site to be considered for housing.

22. The site lies within the urban area and the appellant states that there is therefore a presumption in favour of development. Whilst this might be so in terms of the emerging Local Plan which does not allocate the land for any particular use and makes no reference to the Planning Brief, only little weight can be attached to it. In the context of the adopted Local Plan the appeal site is specifically allocated for community facilities.

23. A Council officer indicated during consultations on the application that he was unaware of any demonstrable need for community facilities in this location arising from studies that may have been undertaken since the planning brief. However, an objection was received to the application from a medical practice seeking to relocate and who were considering the site for a surgery. Such a use would be an acceptable community facility within the terms of the development plan, the planning brief and the Section 52 Agreement.

24. The Council presented at the Hearing an application by the same medical practice for development at another location. This indicated that the appeal site was less suitable for their purpose for a number of reasons. While I acknowledge that this particular medical practice has decided to relocate elsewhere, it does not preclude other potential users from considering it an appropriate location."

14. In paragraph 25 the Inspector concluded that the area set aside for a community hall in the application was too small. He concluded in paragraph 26:

"I conclude, therefore, that the proposal, apart from a small area of the site which has been excluded from the proposed development, would not be for a community facility. No evidence has been presented to show that the allocated use of the site is redundant, interest having recently been expressed by one medical practice. While I acknowledge that this particular use has fallen away, it is evidence of continuing interest in the site and further potential users may be found. The proposal would thus be contrary to Structure Plan Policies S1 and H9, Local Plan Policies BE1, H5 and C3, the Land at Foredown Hill Planning Brief, and the existing Section 52 Agreement, as well as the advice in PPG3."

For those reasons, he dismissed the appeal.

15. The four grounds of challenge advanced by Mr Alesbury are as follows.

GROUND 1

The Inspector erred in attaching "much weight" to the section 52 agreement. It had been argued on behalf of the claimant at the hearing before the Inspector:

"... that the existence of the 'Section 52 Agreement' affecting the Claimant's land was not relevant to the issue whether planning permission should be granted or not (being more akin to a restrictive covenant). ... in practice it would be necessary to establish that development such as the Claimant proposed was acceptable in planning terms, before seeking (whether by negotiation or litigation) to discharge the restrictive terms of Section 52 Agreement."

It was contended that the Inspector appeared to have taken no notice of those arguments and to have treated the section 52 agreement as if it were in itself a planning consideration of much weight against the grant of planning permission. It was said that the Inspector's approach was contrary to the views expressed by the House of Lords in British Railways Board v Secretary of State for the Environment [1993] 3 PLR, 125. At page 133, Lord Keith, with whom the remainder of their Lordships agreed, said:

"The owner of the land to which the application relates may object to the grant of planning permission for reasons which may or may not be sound on planning grounds. If his reasons are sound on planning grounds no doubt the application will be refused. But if they are unsound, the mere fact that the owner objects and is unwilling that the development should go ahead cannot in itself necessarily lead to a refusal. The function of the planning authority is to decide whether the proposed development is desirable in the public interest ... there is no absolute rule that the existence of difficulties, even if apparently insuperable, must necessarily lead to refusal of planning permission for a desirable development. A would-be developer may be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considers that it is in his interests to secure planning permission notwithstanding the existence of such difficulties, it is not for the planning authority to refuse it simply on their view of how serious the difficulties are."

16. Mr Alesbury submitted that the section 52 agreement was in the nature of a restrictive covenant (since this is an "old style" agreement which predates the amendments introduced by the Planning and Compensation Act 1991, any application for its discharge or modification would go to the Lands Tribunal not to the Secretary of State under section 106B of the Act as amended), and the Inspector was therefore wrong to say that he would give it much weight because, for so long as it remained in force, it made it difficult, if not impossible, to carry out the development.

CONCLUSIONS IN RESPECT OF GROUND 1

In my view, these submissions put words into the Inspector's mouth and miss the reason why he was entitled to accord some weight (whether much or little was a matter for him) to the agreement. In the British Railways Board case the local authority was refusing as a landowner to enter into a section 52 agreement despite the Secretary of State's conclusion that planning permission should be granted on the planning merits subject to such an agreement. The Secretary of State declined to impose a "Grampian style" condition in relation to access, solely because the Council was not prepared to co-operate. The facts in the present case are very different. Here there is a section 52 agreement entered into in 1990. In that agreement the Council, as local planning authority, agreed with the landowner and the prospective developer that the appeal site should not be developed residentially but should be reserved for community uses.

17. I can see no reason why that exercise of the Council's powers as local planning authority should be any less capable of being a material consideration than, for example, an agreed development brief between the local planning authority and an intending developer. Unlike the Secretary of State in the British Railways Board case, the Inspector in the present case did not rely upon the difficulty of implementing a residential planning permission for so long as the section 52 agreement remained in force. There is no reference to any such difficulty in the decision letter. He gave weight to the section 52 agreement because it was an agreement reached between the local planning authority, the owner of the land, and a prospective developer as to what would be the appropriate use for this site. Whether a local planning authority's agreement as to the future appropriate use of a site is contained in a deed under section 52 or a non-legally binding document, such as a development brief, it is still capable of being a material planning consideration. If it is such a consideration, then it is for the Inspector to decide whether, in the circumstances of the particular case, he should give it much, some, or little weight.

18. I accept the submission that the Inspector was not entitled to say, in effect, 'There is a section 52 agreement in force which prevents this development from being carried out, therefore I must refuse planning permission.' But that was not this Inspector's approach, otherwise his decision letter would have been a great deal shorter. The Inspector recorded (para 16) and rightly considered (paras 17 to 19 and 23 to 24) the claimant's argument that there was "now no requirement for a community use on land which has been vacant for several years."

GROUND 2

Mr Alesbury submits that the Inspector's conclusion in paragraph 26 of the decision letter, that to grant planning permission for the proposal would be contrary to policies S1 and H9 in the structure plan, and BE1 and C3 in the local plan, is either based on a misunderstanding of those policies, because the proposed development would not be contrary to them, or is inadequately reasoned, because the Inspector has not condescended to explain why the proposals would be contrary to those policies. He accepts that the Inspector's conclusion that the proposal would be contrary to policy H5 is intelligible, since that policy incorporated the development brief, and there is no dispute that residential development on the site would be contrary to the provisions of the development brief.

CONCLUSIONS IN RELATION TO GROUND 2

In my judgment, this complaint fails to take sufficient account of the context in which the hearing was held and the decision letter written by the Inspector. The Inspector was explaining his decision to the parties who had attended the hearing. They would have been well aware of the two reasons for refusal given by the second defendant. The first reason alleged that residential use of the site would be contrary to the community use which had been reserved under policy H5. The second reason alleged that the site was a Greenfield site and that residential development on such a site would be contrary to PPG3 and to various policies in the structure plan and local plan. In his decision letter the Inspector was clearly responding to these two reasons for refusal. There is no suggestion in the letter that he considered that the proposal would be contrary to development plan policy for any other undisclosed reason or reasons.

19. In paragraph 4 of the decision letter, he referred to various criteria in structure plan policy S1, including criterion (e). In paragraph 5 he said that policy H9 encouraged the recycling of existing developed land for housing. His conclusion in paragraph 20 of the decision letter, that the site was a Greenfield site, is not challenged. Having so concluded, it is readily understandable, once the decision letter is read as a whole, why the Inspector concluded in paragraph 26 that the proposal would be contrary to policies S1 and H9 in the structure plan. It is accepted that it would be contrary to policy H5 in the local plan. Policy C3 in the local plan is as follows:

"The Council will discourage development involving the loss of community facilities unless suitable alternatives are provided. In such cases the alternative uses for the community facilities will be expected to be residential unless otherwise indicated on the Proposals Map."

Mr Alesbury submitted that this policy had no application since it related to existing community facilities, and there were no such facilities on the appeal site. The Inspector was well aware of the terms of policy C3, since he accurately paraphrased them in paragraph 6 of the decision letter. Although this site does not contain any existing community facility, it has been allocated for community facilities and the Inspector was certainly entitled to conclude that the proposed residential development would be contrary at the very least to the objective underlying policy C3. I do not accept that the Inspector was obliged to spell out this rather obvious point in any more discursive reasoning.

20. I accept the submission that it is not at all clear why the Inspector thought that allowing the appeal would be contrary to policy BE1 in the local plan. Apart from a single mention in paragraph 6, policy BE1, which sets out general guidelines for development, does not feature elsewhere in the decision letter.

21. On behalf of the Secretary of State, Miss Haynes fairly conceded that it was difficult to see why the Inspector might have thought that the proposal conflicted with policy BE1. It provides general guidelines for the manner in which development will be carried out, for example avoiding unacceptable loss of privacy, loss of sunlight, daylight et cetera.

22. This is a defect in the decision letter, but it is not one that is of any significance. There is no reason to believe that the conclusion in paragraph 26 would have been any different if the unexplained reference to policy BE1 in the local plan had been omitted. The proposal would still have been contrary to the remaining structure and local plan policies, to the planning brief, to the section 52 agreement and, on the Inspector's approach, to PPG3. That leads on to the next ground of challenge, the Inspector's approach to PPG3.

GROUND 3

It was submitted that the Inspector did not explain why he concluded in paragraph 26 that granting planning permission for the proposed development would be contrary to PPG3. He had concluded in paragraph 20 that the site was not a windfall site, but that did not necessarily lead to the conclusion that there would be conflict with PPG3.

CONCLUSIONS IN RELATION TO GROUND 3

Again, the position becomes clear as soon as the decision letter is read as a whole, in the context of the issues before the hearing. The Council were contending not merely that the site was a greenfield site, with which the Inspector agreed (para 20), but also that there was an adequate supply of housing land, which the claimant accepted (para 21). Against that background, the Inspector was entitled to conclude that the release of a greenfield site, in circumstances where there was no need for such a site to be released because there was an adequate supply of housing land, would be contrary to the policies in PPG3.

GROUND 4

In the light of the Inspector's conclusions in paragraphs 17, 18 and 19, of the officer's indication that he was unaware of any demonstrable need for the community facilities in this location arising from studies that may have been undertaken since the planning brief (para 23), and the fact that the medical practice which had objected to the application had found another site, it was submitted that the Inspector's conclusion in paragraph 28 that there was "evidence for continuing interest in the site and further potential users may be found" was irrational. The Inspector had failed to have any proper regard to the real likelihood of the land being needed or used for the purpose of community facilities, given that it had lain empty for many years.

CONCLUSIONS IN RELATION TO GROUND 4

The Inspector clearly did have regard to this issue. Indeed, he devoted a considerable amount of his decision letter to it (see above). The site was allocated for community purposes in the local plan. There had been an objection to its development for residential purposes from a community use, a medical practice. The Inspector was entitled to conclude that although that particular practice had found an alternative site, this was evidence of continuing interest and that "further potential uses might be found."

23. It was for the Inspector to judge whether or not there was such potential. His conclusion that there was, whilst it is no doubt very disappointing to the claimant, cannot be described as perverse.

24. For these reasons, this application must be refused.

25. MISS HAYNES: I am obliged, my Lord. My Lord, I do seek the costs of this application. Your Lordship should have a copy of the statement of costs submitted by the Secretary of State for summary assessment?

26. MR JUSTICE SULLIVAN: Yes, somewhere I do.

27. MISS HAYNES: My Lord, my instructing solicitor has just reminded me that the statement of costs will have provided for a longer hearing, and that given that we have only taken up three hours of the court's time, it is conceivable that it could be reduced with that in mind.

28. MR JUSTICE SULLIVAN: It is not unusual sometimes in this court that the Treasury solicitor's costs are slightly reduced for that very reason, I am happy to say. So we save public funds to a degree. Yes, what are you suggesting.

29. MISS HAYNES: Well, taking a look, may I propose, my Lord, if we take an hour off the solicitor's costs and an hour off mine, then that should come to a reduction of £250.

30. MR JUSTICE SULLIVAN: Are you going to leave me to do the math, it is generally a hopeless exercise to leave me to do the math.

31. MISS HAYNES: The total then becomes £3,235.

32. MR JUSTICE SULLIVAN: Yes, we are all agreed that that is correct. What do you want to say about principle first, Mr Alesbury, and then the detail second?

33. MR ALESBURY: My Lord, I want to say very little about either the principles or the arithmetic. There is no basis on which I can oppose the principles of the application, and neither is there any basis on which I can oppose either the amounts or the deduction, obviously. So that is acceptable to my client.

34. MR JUSTICE SULLIVAN: Thank you.

35. MR ALESBURY: Purely on a precautionary basis, but not because I have any specific instructions to pursue this matter, I do apply to your Lordship for leave to appeal against your Lordship's judgment. I think I would make that application in respect of grounds 1, 2 and 4, I do not think I would suggest pursing the PPG3 ground. In simple words, I would have to be arguing that my submissions were correct and your Lordship was wrong.

36. MR JUSTICE SULLIVAN: Yes, that is perfectly fair. You would be submitting you were right and I was wrong, for the reasons you have given?

37. MR ALESBURY: Indeed, my Lord.

38. MR JUSTICE SULLIVAN: There is nothing else specifically?

39. MR ALESBURY: Nothing else specifically.

40. MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you on that, Miss Haynes.

41. The order of the court is that the application is dismissed. The claimant is to pay the first defendant's costs. Those cost to be summarily assessed in the sum of £3,235. I refuse permission to appeal. I am not satisfied that there is a reasonable prospect of success in the light of the terms of this judgment. It does seem to me that this is a case that very much turns upon the facts of this particular decision letter. So I hope I will not be thought discourteous for not repeating the various reasons why I think I might be right.

42. MR ALESBURY: I am very grateful.