Wiltshire Council v Secretary of State for Communities and Local Government & Anor

In this action the Claimant Council seeks to challenge the decision of the First Defendant’s Planning Inspector contained in a Decision Letter dated 18 January 2010, pursuant to s.288 of the Town and Country Planning Act 1990. The decision in question allowed the Second Defendant’s appeal against the Council’s planning decision refusing the grant of permission for residential development at land off Sandpit Road in Calne (‘the appeal site’).

The application to quash this decision is brought by a Claim Form issued on 25 February 2010; and is based on alleged errors of law by the Inspector, which should result (so the Claimant contends) in an order quashing the decision and remitting the matter to the First Defendant (‘the Secretary of State’) for reconsideration.

On 30 March the Second Defendant issued an application under CPR Part 3.4(2)(a) to dispose of the claim summarily, on the basis that the Statement of Case disclosed no reasonable grounds for bringing the claim. The Secretary of State has taken no part in the application, but has no objection to the claim being struck out.

The basis of the Second Defendant’s Application is, first, that the claim is bound to fail and the continuance of the proceedings will therefore cause unnecessary delay and serve no useful purpose, and secondly, that delay will cause substantial prejudice to the public interest which requires the building of residential property.

The Second Defendant applied to the Claimant for planning permission to erect a number of houses at the appeal site. The Claimant rejected that application and the Second Defendant invoked a right of appeal under s.78 of the Town and Country Planning Act 1990 (‘the 1990 Act’). An Inspector was appointed by the Secretary of State to hold a public Inquiry and to determine the appeal. The Inquiry was held in early December 2009; and, by his Decision Letter (‘the DL’), the Inspector allowed the appeal and granted planning permission for the development of the land for housing. It is from this decision that Claimant appeals

Section 288 of the 1990 Act enables ‘a person aggrieved’ to apply to the High Court to quash an Inspector’s decision on the grounds that

The basis on which the Court approaches an application under s.288 has been established by a number of cases; and, since that approach is common ground between the parties, it can be stated relatively shortly.

The weight to be given to a material planning consideration is a matter of planning judgment for the inspector. Providing he has regard to all material considerations, he is at liberty to give them what weight he thinks appropriate or no weight at all, subject always to an argument that his decision is not Wednesbury unreasonable, see for example the speech of Lord Hoffman in Tesco Stores v. Environment Secretary [1995] 1 WLR 759 at p.780F-G.

Where an expert tribunal (such as a Planning Inspector) is the fact finding body, the Wednesbury unreasonable test will be a ‘difficult obstacle’ and poses a ‘particularly daunting task’ for an applicant under s.288, see Sullivan J in R. (Newsmith Stainless Ltd) v. Secretary of State for the Environment Transport and the Regions [2001] EWHC 74 (Admin) [7-8].

The Court will be astute to ensure that a challenge brought under s.288 is ‘not used for what is, in truth, a rerun of the arguments on the planning merits,’ see Newsmith (above) [6].

A decision letter must be read in good faith and as a whole, see South Somerset District Council v. Secretary of State for the Environment [1993] 11 PLR 80 Hoffman LJ, at p.83. The letter ought to be construed in a practical manner, see Seddon Properties v. Secretary of State for the Environment (1981) 42 P&CR 26, Forbes J at 28,

If an Inspector has materially misunderstood a plan or policy it may provide a foundation for quashing a decision, see Hoffmann LJ in the South Somerset case (at p.82H). However

Reasons for a decision must be intelligible and adequate, see Lord Brown of Eaton-under-Heywood in South Buckinghamshire District Council and another v. Porter (No.2) [2004] 1 WLR 1953 [36]:

In R. (Lovelock) v First Secretary of State [2006] EWHC 2423 (Admin) HHJ Gilbart QC (sitting as a Deputy High Court Judge) described the obligations of an Inspector as follows.

An application to strike out or enter judgment under Part 24 is not the usual way of disposing of s.288 applications. However, in Evans v. First Secretary of State and Others [2003] EWCA Civ 1523 the Court of Appeal indicated that, where a s.288 application was doomed to fail and there was no other compelling reason for a trial, a summary disposal would be appropriate.

The question for consideration when hearing an application for summary disposal under Part 3.4(2)(a) is whether the claim has no realistic prospect of success. If it has, then no summary disposal is appropriate, see for example R. (South Gloucestershire Council) v. Secretary of State for Communities and Local Government [2008] EWHC 1047 (Admin) Collins J. Although the Second Defendant’s application is not made under Part 24, the Court has a power to act as if it were, see editorial comment in the White Book at 3.4.6.

The Claimant, the local planning authority for Wiltshire, refused outline planning permission for a development of up to 350 dwellings on the appeal site. The decision involved residential development within the former North Wiltshire District Council (‘NWDC’) administrative area.

Under section 1(2) of the Planning and Compulsory Purchase Act 2004 (‘the 2004 Act’) the Regional Spatial Strategy (the ‘RSS’) sets out the Secretary of State’s policies in relation to the development of land within each region. Section 38 of the 2004 Act defines the development plan. Section 38(3) specifies the development plan as comprising the RSS and such development plan documents as have been adopted or approved. By section 38(6), if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the development plan unless material considerations indicate otherwise.

At the time of the appeal the statutory development plan documents consisted of the Regional Planning Guidance for the South West (RPG10), the saved policies of the Wiltshire & Swindon Structure Plan 2016 and the saved policies of the North Wiltshire Local Plan (LP).

The Wiltshire & Swindon Structure Plan 2016 implicitly disaggregates the level of housing provision within the former North Wiltshire District Council (the ‘NWDC’) by focussing provision at three Principal Urban Areas: 3,000 dwellings at Chippenham, 1,000 at the western side of Swindon and 6,000 for the rest of the district (DP4).

It was common ground at the Inquiry that considerable weight was to be given to the emerging South West Regional Spatial Strategy (‘SWRSS’). This had been subject to an examination in public, following which the Secretary of State had published proposed changes. Emerging SWRSS policy HMA2 continued a strategy of focussing development on Principle Urban Areas (now referred to as Strategically Significant Cities and Towns ‘SSCTs’) including Swindon & Chippenham. The housing provision was identified initially by the Housing Market Areas (‘HMAs’), which do not follow administrative boundaries. The distribution within the HMAs was specified by reference to administrative boundaries and was implicitly disaggregated so as to ensure that the housing provision was consistent with the Emerging SWRSS policy of concentrating development at SSCTs.

The appeal was concerned with the emerging SWRSS HMA2 which required the provision of 53,900 dwellings in the Swindon area. Of that total 13,700 were to be provided within the former NWDC administrative area. The emerging SWRSS disaggregates this requirement, identifying the location for 8,500 of that total as urban extensions to the Swindon and Chippenham SSCTs (3,000 and 5,500 respectively), with the balance of 5,200 dwellings to be provided in the former NWDC.

The appeal site was outside the framework settlement boundary for Calne as designated in the LP and was therefore part of the countryside. It followed that, since the proposed dwellings were not to be provided in connection with rural purposes, the development conflicted with the LP.

By paragraph 71 of Planning and Policy Statement 3 ‘Housing’ (PPS3) there is a presumption in favour of granting planning permission where the Local Planning Authorities are unable to show an up-to-date 5 year supply of deliverable housing sites.

It is convenient to set out the broad structure of the DL, by reference to its paragraph numbers in parenthesis, before turning to the detail.

At [4-5], the Inspector identified the relevant development plan documents: RPG10, the saved policies of Wiltshire & Swindon Structure Plan 2016 and the LP; and at paragraphs [6-8] he described the policy set out in the emerging SWRSS policy HMA2. At [10] he described the main issue for his determination

The rest of the Decision Letter considered housing need [11-22], development in the countryside [23-27] and further matters not material to the present application.

When considering housing need the Inspector noted the agreement between the principle parties that significant weight should be attached to the emerging SWRSS. He also noted that the main parties differed in their assessment as to the number of years of housing land supply within the former NWDC administrative area. The Council could demonstrate only 2.7 years of housing land supply in the former NWDC administrative area. However it was agreed that when the housing supply requirements within the former NWDC administrative area were disaggregated (so as to exclude the urban extensions to Chippenham and the West of Swindon) the Council was able to demonstrate 5.6 years of residential land supply for the rest of the former NWDC area [12-13] and [18]. The Inspector referred to three appeal decisions which were relied on by the Council in support of their approach to that disaggregation was appropriate; but distinguished them from the case with which he was concerned [15-17]. At the centre of the issue on this application are paragraphs [18-22] of the Decision Letter.

The Inspector returned to the issue of shortfall in housing supply when considering the development of the countryside,

The basis of the Claimant Council’s challenge is that:

This argument is developed under a number of sub-paragraphs (a)-(k) of §4.6 of the grounds, which it is convenient to group together, as developed in the course of argument by Mr Cairnes.

First, the RSS formed part of the statutory development plan, and both the existing RSS and emerging SWRSS focussed the housing development on Principle Urban Areas and SSCTs respectively. Both recognised that housing needs did not follow administrative boundaries and both specified the general strategic locations and requirements for housing. SP policy DP4 indicates that within the former North Wiltshire District Council area provision was to be made for 1,000 dwellings as an urban extension West of Swindon and 3,000 dwellings as an urban extension to Chippenham, with 5,000 further dwellings within the remainder of the district. This plainly showed a disaggregated approach to housing supply, which the emerging SWRSS continued. The Inspector erred in law in failing to apply this disaggregated approach to calculating the housing land supply requirement within the former NWDC Administrative area. He was bound to apply the disaggregated approach and, if he did not, to explain why he did not. It was not in dispute that the Council could show a 5 year supply of housing land for the remainder of the district and the appeal should have been determined in accordance with the disaggregation approach, unless there were material reasons to indicate otherwise.

Secondly, the Inspector correctly acknowledged that paragraph 71 of PPS3 was only relevant if the Local Planning Authority could not demonstrate a five year supply of deliverable sites [21]. The significance of paragraph 71 was that failure of the Local Planning Authority to demonstrate a five year supply of deliverable sites indicated an unmet need such as to invoke a presumption in favour of development. Although it was agreed between the parties that the Council could demonstrate a five year supply on a disaggregated approach the Inspector concluded that paragraph 71 of PPS3 was engaged. If the Inspector had properly construed the policy then paragraph 71 would not have been engaged as demonstrating such a need for housing as to justify a departure from the statutory development plan.

Thirdly, the disaggregation approach had been adopted in the three previous planning decisions to which he referred in [15-17]; and the Inspector did not give reasons as to why there should be a departure from the disaggregated approach adopted in those appeals and failed properly to take them into account.

For the Second Defendant, Mr Crean QC submitted that there was no basis for saying that the Inspector disregarded the policies of the statutory development plan or failed to take them properly into account.

The documents which made up the statutory development plan were set out at [4-5]; and the Inspector expressly acknowledged that the emerging SWRSS was also relevant to the appeal [6-8]. The basis of the challenge amounted to nothing more than a disagreement with the Inspector’s conclusion as to the correct interpretation and application of the policies. There was no basis for concluding that his interpretation was Wednesbury unreasonable, see Associate Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

The Inspector had set out the respective position of the parties on the issue of disaggregation at paragraphs [13] and [14] and there was no basis for asserting that the Inspector misunderstood the Claimant’s position that disaggregation was the only proper approach to the issue.

It was open to the Inspector to adopt a different approach to that adopted in the 3 planning decisions to which he had been referred by the Council. He had referred to the decisions and explained why he distinguished them.

He had also considered [18] what decision he would have made if disaggregation were appropriate; and had concluded that a 5.6 year supply of housing for the rest of the North Wiltshire District Council Area was ‘only marginally higher that the necessary 5 year supply.’ This point was further developed at [19], where he had noted that ‘Flexibility is … at the heart of national policy on housing’; and at [20] where he noted that national housing policy required local authorities to, ‘identify a further supply of specific developable sites for years 6-10’. Even on the Council’s approach to the disaggregation issue the housing supply would only be raised to 7.2 years.

It followed that the disaggregation issue made no difference to the outcome of the appeal. The housing supply was either 7.2 years or 3.2 years depending on who was right on the disaggregation issue, but that range had to be looked at against a policy requirement to provide developable sites for 6-10 years, a central requirement for flexibility in supply and a Government statement that maintaining a continuous supply was critically important to assist economic recovery. In these circumstances even if he had preferred the Council’s approach to disaggregation he would still have granted permission, as was made clear from [22].

The structure and content of the Decision Letter show clearly that the Inspector had in mind the argument that disaggregation was part of the applicable policy. He addressed this question specifically at [13-14].

He correctly stated that the presumption in favour of development in paragraph 71 of the PPS3 only applied if the Local Planning Authority could not show that there was an up-to-date 5 year supply of deliverable development sites. He addressed the issue of disaggregation in terms which show that he understood the competing arguments. He found that the Council could not show a 5 year supply of deliverable sites unless disaggregation applied. He acknowledged that the principle of disaggregation was implicit from the emerging SWRSS and the Wiltshire and Swindon Structure Plan 2016, but was not mentioned in PPS3. This was, at the very least, a view that was open to the Inspector; and it is not properly arguable that he misunderstood or misapplied a relevant policy, see the South Somerset case (above). He carefully considered the three decisions in which a different approach had been adopted; and concluded that they involved different considerations. Whether he was right or not to draw distinctions with those cases is not to the point. The Council can only succeed with that part of their argument if the Inspector’s view was seriously flawed to the point of irrationality, or his reasons for his decision were inadequate to the point of unintelligibility. They were plainly not.

The Inspector then tested his provisional conclusions by assuming that he was wrong on the disaggregation issue, and that disaggregation was appropriate. On this assumption he concluded that the development would contribute to the future housing needs of the area beyond the first five years; and that this was a desirable result since, on the basis of disaggregation, there was only a 5.6 years supply of housing for the rest of the NWDC area, ‘only marginally higher that than the necessary 5 years supply’ [18]; and the proposed development ‘would contribute to the future housing beyond the first five years’ [22], thus going towards meeting the requirement in paragraph 55 of PPS3 to identify a further supply of specific developable sites for years 6-10 [20]. Although this approach was challenged by Mr Cairnes during the course of argument, it cannot even arguably ground a challenge under s.288. The basis of the Claim is in effect based on a disagreement with the conclusions of the Inspector, dressed skilfully and persuasively by Mr Cairnes, as an error of law.

I should add that I did not find that the Second Defendant’s argument based on the public interest in avoiding delays in planning cases added anything to its other arguments on this application.

For these reasons I have concluded that the claim should be disposed of summarily against the Council. Although the application is made under CPR Part 3.4(2)(a). It seems to me that the better course may be to treat the application as one under CPR Part 24.2.

I am concerned by one particular aspect of the application. The strike out and Part 24 jurisdictions are valuable means of ensuring that cases are dealt with justly, and with a view to saving expense (see CPR Part 1.1(2)). A realistic estimate for the hearing would have been half a day, as the Claimant made clear. The Second Defendant’s estimate was for an hour. That was an unrealistic estimate, which enabled the Second Defendant to secure a hearing of its application within 2 months of the claim being issued and within 2 weeks of the issue of its application to strike out. If an accurate estimate had been given it is unlikely that the application would have been heard significantly before the Claimant’s s.288 claim, in October.

The delays in hearing planning appeals and the difficulties that these cause are a matter of concern; but the way to address these difficulties is by a coherent and general approach rather than seeking to advance individual cases by issuing unrealistic time estimates, as occurred here.

Accurate and agreed time estimates are essential if the Administrative Court is to function properly and in the interest of litigants. If unrealistic estimates are given to the listing office, those responsible may find that cases are removed from the list, to the general inconvenience of the parties, and that other sanctions may be imposed.