South Gloucestershire Council v Secretary of State for Communities and Local Government

MR JUSTICE COLLINS: There is before me an application by the second and third defendants who are the developers of the site in question to set aside a claim under Section 288 of the Town & Country Planning Act made by the South Gloucestershire Council. The application is made for summary judgment. It is accepted that there is jurisdiction in the court to consider such an application. Essentially it amounts to an application to strike out.

Claims under Section 288 are not subject to any permission stage, unlike claims relating to enforcement notices. The reason why there is no permission stage is largely historical. Section 288 has existed under previous legislation for a very long time. Originally there was no need for any leave to appeal in any application against a decision of the Secretary of State or one of his or her inspectors whether it be on enforcement notices or decisions relating to appeals against refusals of planning permission.

As a result of recommendations by Robert Carnwath QC (as he was) in a report which he had prepared in 1989 or thereabouts the decision was made that there should be a permission requirement in respect of enforcement notice appeals largely because those who were subjected to such notices were using the appeal system in order to prolong the period in which they could carry on the activities that they knew perfectly well in due course they were going to have to cease. That requirement was not brought in in respect of Section 288 appeals.

The judges of this court have for some time taken the view that it is desirable that such a permission stage should be introduced. This is partly for the protection of those who make these claims. Quite often such are litigants in person or frustrated objectors to planning applications and they sometimes bring claims which manifestly have no chance of success. If there were a permission stage they could do so at relatively small cost whereas if they go ahead the costs mount up and they find themselves liable to pay a considerable sum of money. That is merely by way of introduction and an expression, yet again, of the hope that Parliament will look into this quickly and provide for such a requirement.

In reality, what is being done here is an attempt to show that this claim is one which cannot succeed and therefore the application to strike out is, in one sense, being used as an alternative to the permission requirement.

Consideration has to be given to the approach of the court. Essentially we are here concerned only with whether there are errors of law. There is no question of any factual dispute. So the right approach is for the court to adopt essentially the same approach as it would were it considering whether a claim was arguable. There is suggestion in some of the authorities that the threshold should be a little higher than mere arguability. It has been put on the basis of "is there a real chance that the claim will succeed?" Or rather, to put it in its correct way, has the applicant for the strike out shown that the claim has no realistic prospect of success? That is, as it seems to me, the approach that I should adopt. Has Mr Lockhart-Mummery persuaded me that there is no realistic prospect that the claim made by the council will succeed?

It is not only not necessary but I think not desirable that I should go into any detail of the claim itself.

The planning permission in question involved a substantial housing development on the outskirts of Bristol. It is known as, or is labelled, the Harry Stoke Development because it seems that the land upon which it is to take place is known as or is in an area which has the name Harry Stoke. I imagine Harry is a somewhat ancient word or corruption of some ancient word. One bears in mind that in the West Country there are some place names which are undoubtedly interesting. However that is by the way.

It is a very substantial development. The land in question lies roughly between the M32 and the M4 motorways where they join the eastern boundary of Bristol at that point (I think it is more the north eastern). The land immediately to the east of that which is the subject of the application is Green Belt. However there is a proposal which is supported by the South Gloucestershire Council that that land, which effectively is an area bounded specifically by the two motorways, should cease to be Green Belt and should be available for housing development. This is something which has been agreed to by the council and by those who are responsible for the RSS. I am told that that is going to the Secretary of State with that approval and the Secretary of State ought to make a decision in July.

The fact that it is in the RSS is not the be-all and end-all. It would still have to be approved in due course following a public inquiry into the whole of the matter before it could come into force and so be final. So long as it is in the RSS it is, to all intents and purposes, the situation that the overwhelming probability is that it will cease to be Green Belt. That is, for reasons that will become apparent, an important consideration in the context of this case.

The council did not determine the application and hence the appeal to the Secretary of State. There is in the papers indication of complaints made by the developers that the council was dragging its feet and was not co-operating with them in the promotion of their proposals particularly bearing in mind that there is a considerable shortfall of housing in this area. There is a need for this sort of housing development to take place, a need for as speedy a provision as possible and in particular the provision of affordable housing which forms part of this particular scheme.

It is not necessary for me to go into the rights and wrongs of those complaints. They are not material in the context of the matters that I have to decide. I should put it on record that the council disputes that they have in any way acted wrongly in their dealings with the developers. But when it came to the appeal and to the inquiry the council did put forward a number of objections. There was discussion between the parties. In due course the objections were whittled down and three remained outstanding.

The inquiry before the inspector was carried out over a considerable number of days, I think 11 days in all. The detail is reflected in the very substantial report which the inspector produced following that inquiry. The inspector herself recommended refusal of planning permission, but the Secretary of State decided that planning permission should be granted. It is against that decision of the Secretary of State that the council brings its claim.

The defendants (the developers) submit that the grounds relied on by the council do not show any errors of law and that in the circumstances the claim is bound to fail and therefore it should be struck out at as early a stage as possible to enable the development to go ahead for the benefit of not only the inhabitants of this area of the country but also the council itself who will have provided for it housing which is desperately needed. That is perhaps to put the matter in a somewhat tendentious way but that is essentially what is suggested.

The three grounds which are relied on are, first, that the access road which was proposed to the site ran through the Green Belt, or what is presently Green Belt, and so was inappropriate development and it was necessary to show very special circumstances, very special reasons for allowing that development. It is said that the Secretary of State's view on that was flawed for reasons which I will come to in a moment.

Secondly, there was an issue about the design of the development, whether it met the necessary high standards that were to be set.

There was a question of the applicability and of the materiality of Circular 1/2006 which gives advice on the requirements introduced by Section 42 of the 2004 Act which have now to be accompanied by a Design and Access Statement. I say "have now". That circular came into force on 10 August 2006 which was some months after the appeal in this case was lodged. It is therefore common ground that it was not of direct applicability in the sense that the applicants for planning permission had to comply with its terms and had to produce a DAS (a Design and Access Statement). They did do that. They did approach the matter on the basis that their design met all the necessary criteria. It is said that the Secretary of State was in error in rejecting the inspector's conclusions that the design did not meet the necessary standard based upon the criteria set out in Circular 1/2006.

Finally it is an important policy in the South Gloucestershire Local Plan which was adopted in January 2006 that there should be provision of adequate open space in new residential developments. The policy in question is LC 8 and it provides:

It is clear from the terms of that policy that the open space need not be provided - certainly the whole of it need not be provided - on site. It would be compliant with the policy if there were easily accessible space within the vicinity. It is, I gather, accepted that "easily accessible" means within 2 kilometres of the development.

The inspector accepted - because there was some argument as to whether it ought to be on site - that compliance with the policy could be achieved by enhancement or provision of such space within easy distance. But she was not persuaded either that there was sufficient to meet the need or, perhaps more importantly, that the amount of money which the developers were providing to the council to enable enhancement and provision to be made was sufficient for that purpose or that there were sites which could properly be developed to be enhanced or provided. Accordingly there was, in her view, a breach of the relevant policy.

The Secretary of State accepted that there was, on the face of it, a possible breach of the policy but she attached little weight to it on the basis, as we shall see, that it was her view that the conditions could be properly met. That is the background to the grounds. It explains what the council is seeking to argue.

I turn, first, to the Green Belt point. The development, that is to say the access road, is clearly inappropriate development within the meaning of PPG 2. That is entirely accepted. Furthermore as Mr Lockhart-Mummery recognised and accepted - and indeed was the position at the hearing - the developers recognised it was possible for there to be access on site, that is to say that it would not be through any Green Belt land. But they took the view that there were practical disadvantages in that and that for various reasons the access through the Green Belt land was the sensible option. There was argument about and evidence given as to the practical difficulties which would have been created by the on-site access.

The inspector dealt with that matter in this way. She recorded in paragraph 12.39 of her decision:

The inspector went on to deal with suggestions of dissecting the site but took the view that this would not be a disaster, if I may put it that way. She concluded thus at paragraph 12.42:

The inspector thus did not reach any conclusions as to the detail of the matters raised in relation to the comparison of the access arrangements albeit it is clear from what she says, in particular in paragraphs 12.39, 12.40 and 12.41, that she was not over-persuaded by the concerns expressed by the applicants as to the disadvantages of the access on site. Nonetheless the situation clearly was, so far as the Secretary of State was concerned, that she was faced with a conclusion that the housing development was achievable without any harm to the Green Belt because it was achievable by means of an on-site access. Undoubtedly that would have delayed things because it would have necessitated a fresh planning application because the design would have had to have been changed and the master plan, equally, would have had to have been amended.

It was clear that the necessary housing could be produced without the need for the Green Belt to be damaged because it was not suggested, nor was there any finding, that there was any damage to the Green Belt except damage caused as a result of the new access road. It is not only a question of the road itself but it is the use of the road which also creates its own damage to the Green Belt through street lighting, traffic and so on.

In dealing with this issue, the Secretary of State in her decision letter said at paragraph 16:

The Secretary of State recognised in the next paragraph that some weight could be given to the RSS policies and that the potential removal of the land in question carried some weight although she did not place a particularly high level of weight upon that fact. In paragraph 24 her conclusions on the Green Belt were as follows:

It is clear from that - and Mr Lockhart-Mummery accepts - that the most significant factor relied on was the benefits arising from the housing delivery. It is true she does refer to the urgent shortfall of housing supply in South Gloucestershire. Nonetheless she was faced with conclusions whereby the inspector had made it clear that the development was achievable without any damage to the Green Belt. Accordingly to rely upon the delivery of the housing as effectively trumping the inappropriateness in the Green Belt was arguably to approach the matter in a flawed fashion because, as I say, the material before her was that this could be achieved in any event without damage to the Green Belt.

In those circumstances it is at least arguable that there was a need to give much better reasons as to why she took the view that this particular scheme and the circumstances in which the housing was to be delivered outweighed the inappropriateness of the damage to the Green Belt. It is true that she uses the word "urgent" but that is not arguably sufficient.

In those circumstances I take the view that it cannot be said that the claimant will not be able to establish that there was a flaw, an error of law, in the approach of the Secretary of State. It is not purely a matter of planning judgment. Mr Lockhart-Mummery suggested it went only to weight. In the end, it may be that a judge will take the view that that is a proper analysis but there is material, in my judgment, that might suggest that that is not the situation.

That is not the end of the story because Mr Lockhart-Mummery submits that even if there may be an arguable point there, the court would not exercise discretion in favour of granting relief for the very simple reason that by the time the matter goes back it will be clear that the land in question is not going to remain in the Green Belt and therefore the objections on Green Belt grounds will disappear. Miss Ormsby submits that that is not something which can be assured if the decision goes in her favour at the time the matter goes back for reconsideration. It is perhaps - albeit this was being dealt with sometime ago - significant that not only the inspector but also the Secretary of State attached limited weight to the question whether the land would no longer be Green Belt. One appreciates that things have moved on somewhat since then and the council - and it would seem probable the Secretary of State - will not in any way disapprove of the removal of this from the Green Belt.

But I find it difficult to say at this stage I can be satisfied that it is virtually inevitable that a judge would exercise discretion against the claimant on this point.

So far as the design quality is concerned, there is no doubt that the Secretary of State was correct - and the contrary is not argued - to form the view that Circular 1/2006 was not in force at the time that the appeal was lodged and the application made and that therefore it was not necessary for the applicant to put forward a Design and Access Statement or to comply specifically with its terms. However it clearly was a material consideration in the sense that it was going to set out and did set out what were the guidelines to appropriate design. And the planning policies in question required developments to meet a high standard of design. The question always would be how was that standard to be judged. Assistance is clearly given by what has been set out in Circular 1/2006. Therefore although it was not of direct application, its terms were clearly, in my view, and certainly arguably, a material consideration.

The applicant in fact decided, no doubt very sensibly, to produce a DAS and was content - and it argued its case before the inspector on the basis - that it did meet the necessary criteria and that the inspector could be satisfied, and so could the Secretary of State, that the design quality was sufficient to meet all appropriate standards.

The inspector went into the question of design quality and the circular in some detail. She recognised that legal submissions on the applicability of the circular were something that the Secretary of State might wish to take into account as a matter of law. She went on in paragraph 12.19 to say:

The inspector then considered the details of what had been put forward and the applicant's arguments and evidence in relation to that. In paragraph 12.27, for example, she stated:

Overall she concluded that there were deficiencies and that the design did not meet the necessary standard. She said this at paragraph 12.53:

The inspector went on:

The Secretary of State dealt with this in paragraphs 12 to 14 of her decision letter. She said that she considered carefully whether Circular 1/2006 was applicable and decided that it was not - correctly, there is no question about that - and that there was no requirement on the applicant to put forward a DAS. That again is correct. She went on:

The fact that the circular did not apply does not necessarily properly lead to the conclusion that the criteria set out in it should be afforded little weight. That is not the reason why little weight is afforded. It is in my view, at least arguably, a flawed reason because it is accepted - and must be accepted - that albeit it is not of direct applicability nonetheless the standards which it sets out are standards which can properly be looked to in considering whether the policy considerations set out, which require a high standard of design, have been met.

The Secretary of State goes on at paragraph 13:

If the Secretary of State were making clear that she was forming a planning judgment based upon the information that she had as to the design and having regard, as in my view she should have done, to what the circular set out - no problem. The difficulty with that passage, and the only difficulty, is the words "in view of the non-applicability of Circular 01/06." If the view has been taken by the Secretary of State that the non-applicability of the circular means that the criteria set out in the circular do not have to be regarded then that is arguably, it seems to me, an error of law.

Mr Lockhart-Mummery said that is not what is there said and it is not right to read that in. May be. But I am far from satisfied that the result on that aspect is inevitable in favour of the developers.

Finally there is the open space provision. The inspector dealt with this in some detail. It was, I understand, an important part of the inquiry and there was a considerable amount of evidence given in relation to it. That is largely because of the importance attached by the council to Policy LC 8.

The council - when money is provided - has the burden of deciding how that money is to be spent. Obviously it is important that the developer is in a position to show that LC 8 is complied with because that requires that there is a securing through a council of the necessary open space. So the council is in a position of having to do an amount of work in identifying whatever sites might be appropriate. Hence the importance, in its view, of an identification of sites which can and should be used for the necessary purpose.

The inspector's conclusions on this aspect are set out initially at paragraph 12.81 where she said:

Earlier she had considered a number of sites which were suggested. She had rejected the suitability of some. Essentially she had identified three as possibly suitable but those three would not have met fully the shortfall that existed in the amount of hectares which were being, or should be, provided.

The inspector's conclusion at paragraph 12.82 was:

The Secretary of State dealt with this matter at paragraph 15. What she said was this:

Miss Ormsby makes the point that the potential opportunities of up-grading and enhancement of existing facilities within 2 kilometres was limited and would not, on the inspector's findings, apparently have met the full requirement. That is not referred to by the Secretary of State. Furthermore the Secretary of State's view is apparently that the money available would, contrary to the views of the inspector, suffice. It is to be considered whether that is consistent with her acceptance of her inability to be satisfied. She states in the second sentence of paragraph 15 that -

It does not entirely stop there because in paragraph 27 the Secretary of State deals with her overall conclusions. She commences that paragraph by stating that because the access road constitutes inappropriate development and there is other harm to the Green Belt, the appeal proposals are overall not in accordance with the Development Plan. She goes on dealing essentially with the Green Belt point. She also concludes that these are material considerations which justify determining the appeal other than in accordance with the Development Plan. She does not specifically refer there to the conclusion that she has reached that the lack of the open space provisions is itself contrary to LC 8, or rather is not in accordance with LC8.

Mr Lockhart-Mummery makes perhaps the fair point that she having referred to that earlier in the letter could hardly have forgotten it when dealing with her overall conclusions. It is perhaps unfortunate that she did not state it in that paragraph. But it seems to me again overall that there are grounds which can be relied on which might possibly persuade a court that on the open space - ground 2 - the Secretary of State's decision was flawed.

I make it clear, as I hope I have indicated by the words I have used in the course of this judgment, that I am not saying that this claim will succeed. All I am saying is that I am not persuaded by Mr Lockhart-Mummery that it is bound to fail or rather that there is no realistic prospect that it could succeed. It is obviously desirable that housing development take place earlier rather than later on this site. I do not doubt that - particularly in the light of the possible, perhaps probable disappearance of Green Belt protection for this particular area of land - the Green Belt objections will not in the end prevail. I have equally no doubt that it would be sensible for the parties to maintain discussions. I am sure that perhaps they do so in connection with this site.

It is obviously desirable too that this claim be heard within a reasonable time. I cannot give any undertaking that it will be heard this term. We are doing a blitz on the backlog this term. We are having a greater number of judges so that there is at least a possibility. I do not think I can justify saying that this case requires expedition unless either of you persuade me that I can.

As it is, I must dismiss this application.

Do you want some costs?

MISS ORMSBY: I do. In my submission the council should get its costs in any event on the basis that your Lordship has found that this is an arguable case and therefore, on that basis, the claim should not have been made to strike it out. Therefore the claimant council should get its costs in any event irrespective - - - - -

MR JUSTICE COLLINS: Mr Lockhart-Mummery, I do not think you can resist that.

MR LOCKHART-MUMMERY: I do not resist it, no.

MR JUSTICE COLLINS: I have a schedule that comes from Sharpe Pritchard.

MISS ORMSBY: I do not know if your Lordship has a similar costs from the applicant in this matter.

MR JUSTICE COLLINS: I have not seen one. At least I do not think I have seen one.

MISS ORMSBY: If that could be provided to your Lordship.

MR JUSTICE COLLINS: You are going to say that they are asking for a lot more than you.

MISS ORMSBY: We are asking, I think, £15,600. It is a third of the amount.

MR JUSTICE COLLINS: Mr Lockhart-Mummery, are you challenging the amount?

MR LOCKHART-MUMMERY: It is not on my brief fee. I am not resisting the schedule of costs.

MR JUSTICE COLLINS: In that case I will dismiss this application with costs which I assess at the sum of £15,651.

MR LOCKHART-MUMMERY: Can I return to the question to which you anticipated I might come, that is expedition. I do understand the court's present approach to expediting cases that relate to the liberty of the subject and matters of that nature. I do understand that and the constraints on the list. I am aware that there is currently a big effort being made to draft in further assistance in this court. I do not know to what extent that is going to succeed. Some of the delays in the list remain.

MR JUSTICE COLLINS: Particularly, I fear, in planning cases.

MR LOCKHART-MUMMERY: Absolutely worrying. I said a moment ago the last one I did was 15 months.

MR JUSTICE COLLINS: I had one the other day where it was two years.

MR LOCKHART-MUMMERY: You have indicated that you cannot give any undertaking that it will be heard this term. I am seeking such assistance as you feel you could give by way of an indication that, if not heard this term, it be heard early next term.

MR JUSTICE COLLINS: I would have thought that this is a case where it is not appropriate to go into any - - there is nothing in the evidence that needs to be gone into in any detail at all. There may be some bits. It may be you want to establish the position in relation to Green Belt, but that I would have thought could be dealt with by an agreed statement. Where the matter has got to is surely a matter which is capable of being agreed.

MR LOCKHART-MUMMERY: That is right. We have these two rather daunting bundles. I anticipate that at a hearing effectively we can confine ourselves to the documents that have been before you today.

MR JUSTICE COLLINS: I would have thought so. Whether or not it will still be considered that the north field is material, I know not. At the moment I do not think it is. You have your point without it. I do not think this is a question of consistency because it is a question of - - The point you are making is that the criteria are material. I accept that it is clearly arguable that they are.

MR LOCKHART-MUMMERY: I am concerned if it is left floating generally without any impetus from your Lordship - - - - -

MR JUSTICE COLLINS: The reason I make these points is if you can limit it as much as you reasonably can and produce I would have thought an estimate of a day that would be perfectly reasonable.

MR LOCKHART-MUMMERY: Yes. I am grateful. It is agreed it would be a day.

MR JUSTICE COLLINS: And I would say no more than a day. If you get a planning judge - as I hope you will - it certainly should not take more than half-a-day, taking account of judgment time.

Mr Lockhart-Mummery, what is the situation? This is obviously an important development. There is a need for the housing. There is a need to know on what basis. If this claim is to go ahead and if, for example, the council succeeded your clients will feel it necessary to come up with a fresh scheme that took account of the objections.

MR LOCKHART-MUMMERY: Time is not in anybody's favour. Your Lordship has rightly highlighted that the need for housing is not simply substantial but urgent. It gets more urgent by the day. This development has a long lead time, obviously. It is major infrastructure.

MR JUSTICE COLLINS: I imagine that your clients will want to enter into discussions because it might be possible to avoid further problems by producing a scheme for which the council would grant permission.

MR LOCKHART-MUMMERY: I cannot speak for my clients.

MR JUSTICE COLLINS: I am assuming that they are not going to sit back and await results but take sensible steps. I should have thought it was sensible to do so. Miss Ormsby, whatever assertions there were as to the council in the past, surely the council are interested in getting the right scheme.

MISS ORMSBY: Of course.

MR JUSTICE COLLINS: I do not understand this to be a case where there is any objection to these developers as developers.

MISS ORMSBY: Certainly not. We have allocated the site.

MR JUSTICE COLLINS: Not only have you allocated the site, but you are perfectly happy with these developers to develop it.

MISS ORMSBY: Of course.

MR JUSTICE COLLINS: I imagine the council would be content to accept that. It may even be that if they are persuaded that the Green Belt is not likely to be a live issue that that can be got around and we will be back to open space and design which, I suspect, may well be the reality. That is not really a matter for me. It is when one considers urgency, one considers practicalities as well.

MR LOCKHART-MUMMERY: My Lord, combined with that, if there is any uncertainty - and I have made my submissions about that and your Lordship has concluded - in relation to the Green Belt the Secretary of State's proposed changes are due in July.

MR JUSTICE COLLINS: It may be in your interests to hear this after July. If the Secretary of State decides it goes out of the Green Belt you have (a) a stronger argument to the council that your access road should remain and (b) you have a stronger argument on this point before the judge to exercise discretion, do not send it back.

MR LOCKHART-MUMMERY: We have common ground that this hearing should take no more than a day. We can take that information to the listing officer.

MR JUSTICE COLLINS: I am prepared to say that this claim must be heard before the end of October. It is desirable, if possible, that it should be heard this term. But I do not think I can properly say it is vacation business although you may be able to persuade the listing officer if you want to. We do have some Section 9 planning judges we can call on from time to time. We have that possibility if one is sitting in a slot then.

MR LOCKHART-MUMMERY: I would be grateful if you could indicate that it should be heard this term if possible but if not early in the following term.

MR JUSTICE COLLINS: I am certainly prepared to say that. What I cannot do is to guarantee that you can be heard this term.

MR LOCKHART-MUMMERY: I understand.

MR JUSTICE COLLINS: It depends how the list goes.