Taylor Wimpey UK, R (on the application of) v Secretary of State for Communities & Local Government

The priority in West Sussex is to locate new development within towns and villages particularly through the reuse of previously-developed land (including the reuse or conversion of existing buildings). Accordingly, development within built-up area boundaries, including infilling, redevelopment and conversion, should be permitted provided that the impact on the character of the area and the environment, resources and assets of the County is acceptable.

Development requirements which cannot be met within towns and villages or at sites with existing planning permission (subject to review at renewal) should be provided for mainly in the form of large-scale mixed-use development:

Then at subparagraph (2) there is reference to a number of locations, including west of Crawley. Each of the ones referring to Crawley have footnotes, and in relation to the north-east sector Crawley the footnote reads:

In relation to the west of Crawley, there is a similar footnote which reads:

Greenfield development in the rest of the County should be concentrated at the following locations:

The Future of Air Transport White Paper, which was published by the Government in December 2003, indicates that the uncertainty about a third runway at Heathrow and longer-term demand forecasts for air traffic means that a suitable alternative option, that is, a wide-spaced second runway at Gatwick, should be kept open (see paragraph 269). The need to safeguard land for a possible second runway has implications for development at the North East Sector of Crawley and for the West of Crawley Strategic Location. The safeguarding will relate directly to the land needed for the runway and the enlarged airport but also indirectly to land affected by height restrictions and aircraft noise. Development at the North East Sector of Crawley may be delayed. Crawley Borough Council will need to consider the future of any part of the site not directly affected by safeguarding. At the West of Crawley Strategic Location, the precise amount and location will need to be finalised following further detailed assessment work once the position regarding the possible second runway becomes clearer."

Then there is reference to particular matters relating to west of Crawley. The final sentence is:

Provision should be made for the following levels of residential and employment development during the period 2001-2016..."

Then there is a list of the districts. For Crawley the list says: annual average rate (all dwellings), 300; dwellings total (all dwellings), 4,495; previously-developed land target, 35 per cent. There is a figure for employment. It is noted in relation to Horsham and Mid Sussex that:

Then there is a reference to subsequent policy NE7.

The release of housing land should be managed in order to deliver the levels of housing development in Policy NE1(a) over the plan period and to give priority to the reuse of previously developed land within built-up areas. The adequacy of housing land supply will be assessed through monitoring...

the level of housing development in Policy NE1(a) should be achieved over the plan period within each district to enable the delivery of an annual average rate of 3,100 homes (gross) within West Sussex. Any surplus or minor shortfall should be addressed within each district. This may result in the need to bring forward an allocation identified for development in a later phase of a local plan. In exceptional circumstances, any major shortfall arising in one district should be addressed within the relevant sub-area of the County through joint assessment with the district planning authorities. Such assessments will need to take account of any surplus of provision within the other districts within the sub-area which would offset the shortfall and may require a review of the strategy."

Development which will support economic growth in the north east of the County (part of the sub-regional Western Policy Area), particularly related to Crawley/Gatwick as a focus for growth, whilst minimising pressure on land and labour resources should be permitted provided that infrastructure improvements are achieved and any adverse impact on the environment is minimised. Where possible, development should maximise economic benefits for the whole of the County including to the coast.

Recognising the importance of Crawley/Gatwick as a focus for growth in the context of the Western Policy Area in RPG9, local plans will include policies to:

... New residential and other noise-sensitive development should not be permitted in areas most severely affected by noise.

District planning authorities will...

The construction of a second runway at Gatwick before 2019 is prevented by a legal agreement entered into in 1979 by the former British Airports Authority and the County Council. The Future of Air Transport White Paper, which was published by the Government in December 2003, supports a second runway at Stanstead and a new runway at Heathrow to increase runway capacity in the South East. However, it indicates that the uncertainty about a third runway at Heathrow means that a suitable alternative option, that is, a second runway at Gatwick, should be kept open. BAA Gatwick is required to take steps to safeguard land for a southern wide-spaced runway and the safeguarding will need to remain in place until at least Heathrow has been granted permission for a new runway. The safeguarding will relate directly to the land needed for the runway and the enlarged airport but also indirectly to land affected by the runway's actual operation including issues relating to height restrictions for buildings and aircraft noise. Indicative noise contours for the area around an enlarged Gatwick Airport to reflect the noisiest forecast situation, would be required... The safeguarding issue will not be resolved until at least Spring 2005 and the future of Heathrow is unlikely to become clear until 2007. The need to safeguard land for a possible second runway has implications for development at Crawley, particularly at the North East Sector of Crawley and for the West of Crawley Strategic Location..."

The forecast there, that the future of Heathrow is unlikely to become clear until 2007, was entirely optimistic, as is apparent from what has been going on at the moment at Heathrow. There is enormous opposition to the third runway at Heathrow. Equally, there are those who believe that it is essential for the economic benefit of the country. The outcome is difficult to foresee at this stage, but it does appear that the resolution will not take place for some time yet.

It is important to minimise any increase in the population living in the areas subject to the worst nuisance from aircraft noise. In order to define these areas, the Planning Authorities will, from time to time, adopt revised forecast noise contours for the area around Gatwick Airport to reflect the noisiest forecast situation. New land must not be released for residential and other noise-sensitive development in the worst affected areas. Around Gatwick, intensification within existing built up areas will be allowed only with proper sound insulation."

"Notwithstanding that it may be possible to install noise insulation measures for individual buildings, major noise sensitive development will not be permitted in areas subject to aircraft noise exceeding 60 dB(A) unless there are exceptionally compelling reasons."

That is in conflict with the policy NE19(b)(2)(vii). The Inspector applied the policy in the Structure Plan because it was more recent than policy GE17, and thus overrode it. Policy H3A deals with provision for a new neighbourhood in relation to housing and provides:

The North East Sector of the borough is considered to be the best location for the new neighbourhood. It is sufficiently large to accommodate a neighbourhood of the size required together with local facilities, employment and infrastructure. It is close to the existing major employment areas of the town centre, Manor Royal the Beehive Business Park and Gatwick Airport and it will not necessitate lengthy journeys to work. It is also close to major transport routes within the borough which include the main London to Brighton railway line. Services and infrastructure can be supplied to the site.

The impact upon the town and the locality of developing a new neighbourhood will be very significant. There will be economic gains in terms of additional income and investment in the town as well as social gains in terms of housing and community facilities. However there are a number of environmental costs. A large area of countryside which has previously been protected by strategic gap policies would be lost to development. This development could also have an adverse impact upon local highways [specific reference is made]. However, given the requirements of the Structure Plan, development of the North East Sector is considered to be the most suitable option."

"i In accordance with the development strategy for the Region, and more particularly the sub-region:

The proposal in that is that there should be an annual average of 350 houses in Crawley.

Where the development plan is material to the development proposal, section 54A of the...

1990 [Act] [now section 38(6) of the 2004 Act] requires applications and appeals to be determined in accordance with the plan, unless material considerations indicate otherwise. Development plans should give developers and local communities a degree of certainty about the areas in which particular types of development will be acceptable and those in which special measures may be required in order to mitigate the impact of noise. Policies on noise should take account of the guidance in the rest of this note and in the Annexes: it will generally be appropriate for these policies to be set out in Part II of Unitary Development Plans and in district local plans."

Those have been overtaken by the new plans under the 2004 Act, but the principle is still relevant. It goes on:

"Planning permission should not normally be granted. Where it is considered that permission should be given, for example because there are no alternative quieter sites available, conditions should be imposed to ensure a commensurate level of protection against noise."

For air traffic that is 66-72. Finally, D: planning permission should normally be refused if over 72.

With regard to the need for the housing proposed, analysis of the evidence presented shows that the housing target for the Borough up to 2012 set by the adopted Structure Plan should be met from other sites identified in the emerging Core Strategy and windfalls. Measured against the increased requirement proposed in the draft South East Plan, the case for early release of the site is greater, but not, in my opinion, overriding. In the wider Crawley/Gatwick sub-region, there are concerns over the timetable for the delivery of other strategic housing sites, which might add weight to the case for the early release of the appeal site. However, the evidence on this point is uncertain and to release the site now, in advance of a formal review of the position by SEERA [the South East Regional Assembly] and all the local planning authorities involved, would run counter to the requirements of Structure Plan policy NE4.

Permitting development on the appeal site, which is greenfield, in advance of brownfield sites elsewhere in the Borough, would conflict with policies LOC1, NE1 and NE4 of the Structure Plan and one of the main planks of the Government’s policies for sustainable development. Otherwise, however, the sites sustainability credentials are excellent. In particular, it is well placed in relation to the town centre the town's main employment areas and Gatwick Airport. A bus service and enhanced footway and cycleway networks would be provided to connect the site to these destinations and the nearby main line railway station. A range of facilities would be provided within the development to meet the day to day needs of the residents including shops, a primary school, community buildings, a health centre and a library.

There are no development control issues which would constrain the development of the site, apart from the issue of noise in relation to the second runway at Gatwick.

In terms of the proposal’s compliance with the development plan, I conclude that a grant of planning permission at this time would be in conflict with those elements of Structure Plan policies LOC1, NE1 and NE4, which give priority to the development of previously developed land before greenfield sites.

I further find the proposal to develop the site at this time in conflict with policy H3 of the emerging Core Strategy which retains the site as an allocation, but only for development in the longer term."

As to the material considerations in favour of granting planning permission for the appeal proposal at this time, I agree that significant weight should be given to the 760 affordable homes which would be provided as part of the development. Also, whilst an early grant of planning permission for the appeal site would conflict with the principle of securing development on previously developed land before greenfield sites, there is no evidence to suggest that granting permission now would delay or prevent other sites coming forward. In sustainability terms, the site performs well and allowing additional dwellings to be provided on it should help to reduce the present high levels of in-commuting by private car to the Crawley/Gatwick area.

In the absence of the possibility of a second runway being constructed at Gatwick, I would tend to the view that overall the material considerations in favour of granting planning permission at this time would outweigh the conflict with the development plan and the emerging LDF Core Strategy that I have identified and justify the grant of planning permission.

However, Government policy requires that the possibility of building a second runway at Gatwick should be kept open. Permitting the development proposed would be unlikely to frustrate the development of a second runway, but could result in the ultimate capacity of the airport being reduced. Critically, aircraft using a second runway would result in noise levels within the proposed housing area well beyond those which would be likely to cause community annoyance and significantly in excess of the 60dB L_Aeq which PPG24 recommends as a desirable upper limit for major new noise sensitive development. I accordingly take the view that, on balance and taking all matters into consideration, the proposed development should not be permitted at this time."

The Secretary of State agrees with the Inspector that the development plan policies most relevant to the proposals are those summarised at IR5.1-5.29. For the reasons given in IR12.174, the Secretary of State agrees with the Inspector that development of the site for housing would generally accord with the adopted Local Plan and Structure Plan, both of which allocate the North East Sector as the preferred location for a new neighbourhood for Crawley. However, the Secretary of State also agrees with the Inspector's footnote to IR12.174 which states that the Structure Plan recognises that development of the site may be delayed or prevented due to the need to safeguard land for a possible second runway at Gatwick. She notes that the site’s allocation is carried through to the emerging LDF but not for development in the short to medium term. She therefore agrees with the Inspector that an immediate grant of planning permission for the development proposed would conflict with policy NES1 of the emerging LDF. The Secretary of State further agrees with the Inspector at IR12.175 that the proposal’s lack of compatibility with the possible second runway at Gatwick would bring it into conflict with policy NES1 of the emerging Core Strategy if planning permission were to be granted before a firm decision was made on the possible second runway at Gatwick. However, for the reasons set out at paragraph 11 above, the Secretary of State affords the proposal's lack of compliance with this policy limited weight."

She went on in paragraph 16 to agree with the Inspector's views that there would be a conflict with the Structure Plan policies LOC1, NE1 and NE4, and the emerging Core Strategy H3, which give priority to the development of previously developed land before greenfield sites.

The Secretary of State notes that it is common ground that the development would not impinge to any material degree on the land that would be required should a second runway be constructed at Gatwick and that if subsequent to the grant of planning permission for the appeal proposal, Government policy were to require a second runway at Gatwick, then the existence of development on the site would not frustrate that requirement...

Notwithstanding this, for the reasons given in IR 12.62-12.63 and IR12.185, the Secretary of State agrees with the Inspector that there is a significant prospect that the existence of housing on the appeal site would bring about a change in the configuration of the second runway or its operating regime. Accordingly the form of the runway might be changed or its operating regime modified which could in turn reduce the ultimate capacity of the airport."

The Secretary of State considers that the proposals are in conflict with those elements of the Structure Plan which give priority to the development of previously developed land. The Secretary of State further notes that the position regarding the possibility of a second runway remains unclear, that the Airports White Paper requires the option of constructing a second runway at Gatwick to be left open, and that this is recognised in the Structure Plan. She has gone on to consider whether there are material considerations in favour of the proposal which outweigh the conflict with the development plan.

The Secretary of State considers that the site is in a highly sustainable location and would make good provision for affordable housing, as well as providing an appropriate dwelling mix. She is satisfied that development of the site for housing would generally accord with the adopted Local Plan and Structure Plan, both of which allocate the North East Sector as the preferred location of a new neighbourhood for Crawley, albeit subject to the need to safeguard land for a possible second runway at Gatwick.

Although the option of building a second runway would not be frustrated should the appeal proposal proceed, the configuration of any new runway might be altered which could reduce the ultimate capacity for the airport. Aircraft using a second runway would result in noise levels within the proposed housing area well beyond those which would be likely to cause community annoyance and significantly in excess of the 60dB which PPG24 recommends as a desirable upper limit for major new noise sensitive development. In addition, the Secretary of State considers that there is no immediate need to release the site to meet housing need."

That led to her overall conclusion that the appeal should be dismissed.

In relation to noise, it is submitted that it was wrong of the Inspector and the Secretary of State to rely on the fact that the noise levels would exceed 57, because that was inconsistent with policy NE19, which specifically permitted development so long as adequate sound insulation was provided at levels of between 60 and 66, and nowhere on the site was the level of 66 being exceeded.

In relation to prejudice to the second runway, it was submitted that that should not have attracted any significant weight because it was no more than a mere possibility. There was no likelihood of the second runway being needed; it was merely a case of being left open in case the Heathrow third runway and the Stanstead second runway did not go ahead. The prejudice to its construction, if it was needed at Gatwick, was at best as to its configuration. There really was no substantial reason to believe that it would in any way seriously prejudice the economic success of the airport.

It was said that it was wrong to doubt that there was an immediate need, and in those circumstances there would be no conflict with the plans, since no brownfield sites were currently available to provide the housing levels that were required by the planning policies.

It was submitted that the approach was not in accordance with section 38(6) of the 2004 Act.

Unless the full extent of available previously developed land within the built-up areas in Mid Sussex and Horsham is known, release of the North East Sector cannot be demonstrated to accord with policy NE4 nor be compliant with the sequential approach."

That was a reference to a submission which was made.

"Critically, I was not made aware of any objection raised by Thames Water to the planning application submitted for development of the site."

Mr Village asked: why should Thames Water have objected? If development was to be permitted, the developers would inevitably have been required to ensure that proper drainage was in place. Thus, Thames Water would not need to involve themselves in any positive action to object. It seems to me there is some force in that point.

Allowances for windfalls should not be included in the first 10 years of land supply unless Local Planning Authorities can provide robust evidence of genuine local circumstances that prevent specific sites being identified. In these circumstances, an allowance should be included but should be realistic having regard to the Strategic Housing Land Availability Assessment, historic windfall delivery rates and expected future trends."

It is common ground that that would mean that it was not appropriate to take account of windfalls in the circumstances of this case. The Secretary of State agreed with the Inspector's conclusions, but did not refer to the need to exclude windfalls. By the time she gave her decision, PPS3 had been in existence for some 6 months or so.

Whilst representatives of the neighbouring Districts were not at the inquiry to answer for themselves, it seems to me that there is little doubt that they will be fully alive to the shortfalls that had accumulated at March 2005. I would expect them to be addressing the matter in the very near future, if they have not already done so. There is no evidence that they intend otherwise. Accordingly, I take the view that little weight should be afforded to the current housing shortfalls in Horsham and Mid Sussex Districts in deciding whether or not to grant planning permission for the appeal site at this time."

At the same time, it does seem to me that the picture Mr Woolf paints may be unduly pessimistic. On the West of Crawley site, Mr Dennington [the Council's witness] conceded that 'it would be sensible' to determine the route of the relief road after the position regarding the second runway at Gatwick is known... In principle I agree. However, it seems to me that the need to progress development on the West of Crawley site is pressing to the point where a decision on the road will need to be taken in advance of any decision on the second runway. This might result in a road being built which subsequently has to be modified if the second runway proceeds. However, this is a matter which the airport authorities have addressed and in a letter dated 26 July 2004... Gatwick accepted that part of the road would be likely to fall within the boundary of the area safeguarded for future airport expansion. Moreover, they took the view that this should not constrain the decision on the West of Crawley development, and indicated that they would not object if it was found necessary to route part of the road through the safeguarded area."

The need for the relief road would indeed create problems of delivery, but the Inspector concluded upon the evidence that was before him that Mr Woolf's conclusions were overly pessimistic. I do not think that his conclusion in relation to this site could be said to have been perverse, and so one which cannot stand, albeit there is force in Mr Village's criticisms, but it is not for me to reconsider findings of fact, provided they were properly open to the Inspector. In my view, this particular finding in relation to the west of Crawley was.

I do not have any evidence to show that [Mr Woolf's] assumed trajectories for the delivery of housing on the West of East Grinstead and West of Horsham sites are similarly pessimistic. However, his position is in both of these cases at odds with that of the planning authorities involved who I would normally expect to be well informed as to the true position of these proposals. If this is not the case, and the assumptions on which their housing trajectories are founded are materially flawed, I would expect this to be revealed when the soundness of the relevant development plan documents is examined. Until such time as these are examined, it seems unwise to place too much weight on Mr Woolf’s suggestion that the programmes they put forward are significantly optimistic.

My conclusions in this regard are reinforced by the lack of any move on behalf of the various parties with an interest in the matter to invoke action under policy NE4 of the Structure Plan. This states clearly that where there is a major shortfall in one district this should be addressed within the relevant sub-area of the County through a joint assessment with the district planning authorities... It is true that the County considers that it no longer has any locus for this policy in the Structure Plan... However, there is no evidence to suggest that SEERA would not take the lead in invoking action under this policy if they saw a need. No doubt they do have other matters on their mind, as the Appellants suggest... but it seems to me most unlikely that they would not take action under this policy or in some other way if they perceived that there was a real problem with housing delivery in this part of the Region.

In conclusion, I find Mr Woolf’s evidence on the housing trajectory for the West of Crawley site overly pessimistic. On the west of Horsham and West of East Grinstead sites, I do not have sufficient information to reach a conclusive view. There is no evidence, however, that his pessimism regarding the programme for delivery of housing on these sites is shared by the district planning authorities involved, or SEERA. Accordingly, I take the view that only limited weight should be afforded to the Appellants' evidence on shortfalls in sub-regional housing supply in favour of an immediate grant of planning permission for the appeal site."

Against this, the strategic allocations in the neighbouring authorities are to meet the needs of the Crawley/Gatwick area. The appeal site is, by virtue of its location, ideally situated to meet that need... It is available now, and I conclude below that there is no significant impediment to its development. If planning permission is granted now it should deliver 900 dwellings by 2012 and 1,900 by 2016, including some 760 affordable homes... Clearly, its release would make a significant contribution to housing delivery in the Crawley/Gatwick sub-region.

A further consideration which would need to be taken into account in any decision to release the site now is whether alternative sites are available which could equally meet the need. In this regard it is common ground that there are no other suitable sites available in Crawley... Equally, there are no other strategic sites identified in the Structure Plan, which could be brought forward to meet a shortfall. It can also fairly be assumed that the neighbouring planning authorities have allowed for all development that can reasonably be expected to come forward on previously developed land in their urban areas in drawing up their housing trajectories and making their strategic allocations... Accordingly, it might be concluded that there are no other possible sites which could meet the need. Notwithstanding this, it has to be recognised that this was not a matter on which detailed evidence was brought to the inquiry and a joint assessment by all the district planning authorities involved along the lines of that suggested by policy NE4 of the Structure Plan, may reveal other possibilities."

... The advice is nonetheless clear and, given that a large part of the development would be sited in an area subject to noise levels in excess of the desirable limit if the second runway at Gatwick were to proceed... I conclude that this is a significant material consideration weighing against the grant of planning permission at this time."

If the development was otherwise in accordance with the policies, I think there would be considerable force in Mr Village's submission, but the Inspector relied on it in the context of his decision that the development was not in accordance with the planning policies. In those circumstances, I have no doubt that he was entitled to rely on the desirable upper limit referred to in PPG24 and he was not acting in conflict with the policy in NE19(b)(2)(vii) in so doing. Equally, I think that the Inspector was, in the context of his conclusion that there was a breach of the plan policies, entitled to rely on the desirability of allowing for a second runway.