Taylor Wimpey (South West Thames) Ltd v Secretary of State for Communities and Local Government & Anor

The claimant (“Taylor Wimpey”) brings this claim under section 288 of the Town and Country Planning Act 1990 (“TCPA”) and Part 8 of the CPR to quash the decision of a Planning Inspector appointed under section 78 of the TCPA on the grounds that the Inspector failed to take into account one or more material considerations, or failed to provide proper, adequate or intelligible reasons for his decision, or that it was irrational for the Inspector to reach any decision other than to allow Taylor Wimpey’s appeal. As is usual in such applications, the first defendant (“the Secretary of State”) was joined as a defendant and instructed counsel to oppose the application. The second defendant (“Elmbridge”), being the planning authority whose original decision was the subject of the appeal to the Inspector, was also joined as a defendant but took no part in the proceedings and was not represented at the hearing.

The application relates to a site in the green belt and is located near the Kingston Bypass at Hinchley Wood in Surrey. The site, which covers an area of 4.97 hectares, was acquired by the Crown during the Second World War for the erection of a hospital. Buildings were constructed for that purpose but they were never used as such. The predominantly single-storey buildings totalled 12,414 sq. m. in area and were laid out to cover virtually the full extent of the site.

After the War, the buildings were occupied as Government Offices until the site was fully vacated in February 2008. The site had been located in the approved green belt when the green belt was first designated in 1958 and it has retained that status ever since. In order to understand the issues raised by this application, it is necessary to take account of the lengthy planning history of the site.

The relevant history started in February 1991 when Elmbridge issued its Deposit Draft Local Plan. At that time, the buildings that had been built in the 1940s for use as a planned hospital had never been used as such but they were still in use as Government offices. This Plan showed the site as still lying within the approved green belt and it retained that status despite the Local Plan Inspector’s recommendation in the Local Plan report on objections to the Deposit Draft that this status should be removed. The relevant passage in the report had stated:

“Nevertheless, I do not believe that in its present state, the land within the inner security fence fulfils any of the purposes of the green belt. Manifestly, it is not open countryside. It is substantially covered by buildings and seems to me to be part of the urban area of Hinchley Wood which it adjoins on two sides. It is used for Government business and will continue to be so used for the foreseeable future. If that use should cease, there would be a cogent case for permitting development that would not normally be acceptable in a green belt. The most likely alternative would be that this substantial site at the edge of a large residential area would fall into dereliction and decay. In my view that would be a most regrettable outcome.”

The rationale of Elmbridge in rejecting the Inspector’s recommendation in the Local Plan when adopted in January 1993 was that the site had been located in the green belt for many years and there had been no significant change in circumstances in that time. The site’s green belt designation was again retained in the current Local Plan that was adopted in August 2000. The site’s recent development history started with an application for outline planning permission by the then owner of the site in 2004 to demolish the existing buildings and to build residential dwellings on the site instead. This led to outline approval being granted dated 13 June 2006 for permission for development in principle of between 120 and 140 houses with a maximum height of two stories. No application for reserved matters approval had been submitted when a separate full planning application was submitted by Taylor Wimpey for the erection of 145 dwellings in May 2008. Elmbridge refused this application on 22 July 2008 for five reasons relating to inappropriate development in the green belt. Subsequently in 2008, Taylor Wimpey applied for reserved matters approval in respect of 135 dwellings which Elmbridge granted by a notice dated 16 December 2008. In January 2009, Taylor Wimpey started demolition work on the site and, in March 2009, it started development of the residential buildings with a scheduled completion date of the end of 2012.

Meanwhile, in January 2009, Taylor Wimpey appealed Elmbridge’s refusal of permission for the scheme that had been submitted in May 2008. The appeal was considered by an Inspector in May 2009 and the appeal was dismissed by a decision letter dated 24 June 2009. Taylor Wimpey then made a further planning application dated 26 October 2009. This is the application which, following its refusal by Elmbridge on 1 February 2010, was the subject of an appeal which was considered by a different Inspector in June 2010 and was then dismissed by a decision letter dated 7 July 2010. It is that decision letter which is the subject of Taylor Wimpey’s present application to quash.

Outline planning permission dated 13 June 2006 was granted in principle for a site of 4.9 hectares. It provided for the demolition of all existing office buildings and a redevelopment on the site with housing and community facilities. The permission was subject to conditions that required a layout to be provided and approved that showed between 120 and 140 houses with a maximum height of two stories and with at least 50% of these houses being small dwellings. Further conditions required all aspects of the design of the houses to be approved as reserved matters before development started. This grant had been preceded by a section 106 Agreement (Footnote: ¹) which required the owner of the site, including any successor seeking to implement the grant of outline planning permission, to restrict the developed area of the site to 3.07 hectares and for the remaining 1.897 hectares to be set aside as open space outside any urban area. This agreement also required the provision of 30% of the total number of new dwellings to be provided as Affordable Housing.

The outline permission stated that one of the reasons for its grant was that:

“It has been concluded that subject to conditions and obligations to limit the scope and impact of the replacement development, it would not in principle result in any harm that would justify refusal in the public interest and may be permitted as an exception to the normal policy against new building in the Green belt.”

By notice 2008/2205 dated 16 December 2008, Elmbridge granted Taylor Wimpey reserved matters approval for 134 houses and flats and a community centre with associated parking. This approval was subject to conditions that had to be complied with that included a plan showing the precise layout of the development, a list of approved plans and a series of requirements relating to the construction and completion of the development. The permission stated that the reason for the grant of permission was:

“The application is for a satisfactorily designed amended development of 134 (amended from 135) dwelling houses and flats and a community centre (1,120 sqm), which will not create significant adverse effects on any neighbouring property or on the character of the area given its size, scale, design and location.”

On 26 October 2009, Taylor Wimpey submitted an application to Elmbridge for planning permission. The proposed development was described in the Application as being:

“Amendments to planning approval 2008/2205 to allow for the provision of dormer window and/or velux roof lights to 41 dwellings and 11 additional flats within the roof space of the approved apartment blocks together with the re-siting of plots 93 & 94 and a reduction to the size of Block J.”

The application also stated that the building and change of use work had already started but had not been completed, this being work to planning approval 2008/2205 that had started on 1 May 2009. The site was described as being “currently vacant” and its last use as being “under construction”. The application described the site area as being 4.9 hectares and this was depicted with a black line on the accompanying site layout plan. This was the site covered by planning approval 2008/2205. The development that was proposed was stated to involve the gain of residential units and that the total proposed number of residential units would be 98. These were shown within a boundary depicted by a red line, being those units within the site as a whole that were affected by the amendments comprising the proposed development.

Elmbridge acknowledged receipt of the application in a letter describing the proposed development in similar terms to the description that had been provided in Taylor Wimpey’s application and that description concluded with these words in parenthesis:

“(Amendments to planning permission 2008/2205 for 134 houses and flats).”

The covering letter did, however, describe the application as a “Full Application”.

This application was described by Taylor Wimpey’s planning consultants in the Hearing Statement submitted for the hearing of its appeal against Elmbridge’s refusal of permission as follows:

“The application … effectively seeks amendments to an existing detailed planning permission (2008/2205) for 134 dwellings on the site of the former Government Buildings at Hinchley Wood … so as to deliver 11 additional flats (including 4 more affordable housing units) without any increase to the height or footprint of the Approved Scheme and without any material alterations to its volume or design.”

The planning officer concerned with this application recommended it for approval by the relevant planning sub-committee but that sub-committee refused permission contrary to the recommendation. Taylor Wimpey appealed and the Inspector dismissed that appeal on different grounds. It is that dismissal decision that Taylor Wimpey now seeks to quash.

The construction of new buildings in the green belt, save in very limited circumstances which are not applicable to the development in this case (Footnote: ²), is to be considered as being inappropriate. In consequence, any application for planning permission for that development must take account of the defendant’s national statement of policy set out in Planning Policy Guidance2: Green Belts (Footnote: ³) which, specifies that there is a general presumption against inappropriate development except in very special circumstances. The policy document also identifies as an objective of the use of land in green belts the improvement of damaged and derelict land around towns.

This restriction relating to the construction of new buildings on green belt development of the kind proposed on the Hinchley Wood site is set out in paragraph 3.2 of the Planning Policy Guidance document which reads as follows:

“Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

A considerable body of case law has built up since 1995 that assists in the interpretation and application of this Guidance. The relevant principles derived from these cases are as follows:

The defendant has issued a further significant statement of policy which has a direct bearing on the current application for permission on the Hinchley Wood site which any decision-maker of this application should take into consideration. This policy, contained in Planning Policy Statement 3: Housing (Footnote: ⁴), relates to the need for planning decisions to achieve the efficient and effective use of land. The policy provides that a specific outcome of the planning system is to deliver a flexible and responsive supply of land that is managed in a way that makes efficient and effective use of land including the re-use of previously developed land. Moreover, land should be used efficiently so that the design and layout of new development is imaginative such that its layout can lead to a more efficient use of land without compromising the quality of the local environment (Footnote: ⁵).

The application was considered by Elmbridge’s East Area planning sub-committee on 1 February 2010. That sub-committee had before it the report and recommendation of the relevant case officer. This recommended that the sub-committee should approve Taylor Wimpey’s application as an amendment to the existing outline planning permission granted in 2004 and the reserved matters approval granted in 2008. The officer’s reasons for that recommendation were, in summary, that the application was for a satisfactorily designed amended development that would still preserve the character of the green belt and would result in buildings that were sympathetic to their surroundings and which had no adverse impact on nearby properties. The report explained that:

“46.

Outline planning permission and subsequent reserved matters approval was granted for 134 dwellings on the site of which 41 were to be affordable housing units. The current application to utilise roof space for additional accommodation would result in an increase of 11 units. In line with policy requirements, 4 of these units are to be affordable housing. …

55.

It is concluded that the development proposed represents inappropriate development within the green belt and is, by definition, harmful to the green belt. However outline planning permission has been granted and also approval of reserved matters ….. relating to the outline permission. This approved scheme is currently being implemented. It was previously acknowledged that this is an exceptional site … In line with government advice, it was concluded that in principle a redevelopment with housing and community facilities could offer the opportunity for environmental improvement without adding to the impact on the openness of the green belt and the purposes of including land within it. …

57.

The significant harm to the openness of the green belt, previously identified in the [previous appeal scheme arising from the 2008 full planning application] as a result of increase in height and bulk would not occur in this current scheme compared with that already approved [in the 2004 outline approval taken with the 2008 reserved matters approval]. In the absence of any identified harm to the openness of the green belt, it is considered that the provision of additional housing that the [2009 appeal inspector] identified as an important factor in the appeal scheme outweighs the identified harm to the green belt by virtue of the inappropriateness of development. As such, very special circumstances, on balance, are considered to be of sufficient weight to justify the grant of planning permission and the aims to protect the green belt as set out in Government Guidance PPG2 would be met and that the harm, by reason of inappropriateness is, in this case, outweighed by other material considerations.”

The recommendation and the reasons for putting it forward were based on an impeccable application of the structured decision-making process required by PPG2. In summary, the recommendation was based on this analysis of the development application:

The planning sub-committee rejected the advice of the planning officer contained in the report for these reasons:

“1.

The amended development by virtue of the number of additional dormer windows and roof lights would have a greater impact on the openness of this sensitive green belt location. In addition, the extra storeys created would result in larger houses with insufficient garden space. The additional flats within the roof space would only be served by roof lights which would not provide a good standard of accommodation (“….”)

2.

The application does not propose to make any payments for infrastructure and service contributions in accordance with the Council’s Planning Obligations and Infrastructure Provision Supplementary Planning Document …”.

The second ground of refusal is no longer relevant because Taylor Wimpey have put forward appropriate proposals for the making of such payments.

It follows that the planning sub-committee rejected the advice of its planning officer on the sole ground that it considered that the proposed amendments did not provide any benefit so that it was one where any planning benefits were outweighed by the proposal’s planning harm. Thus, it was not relevant to consider whether the very special circumstances of the kind that had prevailed in relation to the original approved scheme should prevail again.

Taylor Wimpey appealed and submitted a detailed hearing statement which included these relevant statements:

“1.2

The application … effectively seeks amendments to an existing detailed planning permission for 134 dwellings on the site … so as to deliver 11 additional flats (including 4 more affordable housing units) without any increase to the height or footprint of the Approved Scheme and without any material alterations to its volume or design. …

4.2.11

… it is very significant that permission has already been granted for development on this site for 134 dwellings, a permission whose implementation is already underway. The development of the Approved Scheme in this green belt location has been found to be, and must continue to be treated as, perfectly justifiable under PPG2. This is because of the very special circumstances under which the benefits of the scheme in terms of housing (and affordable housing) provision, the provision of community facilities and open space, and the re-use of a previously developed but now empty site that might otherwise remain in use) outweigh any harmful impact which the Approved Scheme may have on the site.

4.2.12

It follows that any proposal which, as a minimum, offers the benefits afforded by the Approved Scheme, without any material increase in the impact of the development on the Green Belt, must be justifiable under PPG2. Equally, any proposal which offers greater benefits than the Approved Scheme must be justifiable under PPG2 so long as those greater benefits outweigh any additional harm to the Green Belt that my result. To reject a proposal of either such kind would, against the backdrop of the Approved Scheme, be irrational and wholly inappropriate.”

That hearing statement, therefore, clearly set out Taylor Wimpey’s contention that the application was for a development comprising amendments to the scheme that had already been approved in both outline and detail, that those amendments were beneficial notwithstanding the definitional harm created by the scheme and that, particularly given that the approved scheme which it was sought to amend had been approved previously because of its very special circumstances, the appeal should be allowed. In essence, Taylor Wimpey was contending that the only issue that the appeal was concerned with was whether the planning sub-committee was in error in rejecting the planning officer’s recommendation because it considered that the proposed amendments were harmful on planning grounds.

The appeal was directed to be heard under the so-called hearings procedure. This procedure is fairly and clearly described in the Planning Inspectorate’s publication Procedural Guidance: Planning appeals and called-in planning applications (PINS 01/2009) as follows:

“5.1.1

Under the hearings procedure, the Inspector holds a public hearing with the main parties. … The hearing is an inquisitorial process led by the Inspector who identifies the issues for discussion based on the evidence submitted and any representations made. … .” (Footnote: ⁶)

The Inspector, undertaking the required inquisitorial process, identified the issues for discussion as follows:

Clearly, the Inspector had, as his starting point in deciding these issues, to identify the development which the appeal proposal consisted of. This he did in these terms:

“5.

As described above, the proposal would increase the total units to 145. The 11 additional flats would be lit by roof lights. In addition, 41 of the houses would also have further accommodation in the roof space. These would all have roof lights and, in addition, 20 of the houses would have dormers. A minor adjustment to the layout in respect of Block J and Plots 93 and 94 is also required to facilitate a sewer easement. Other than that, the eaves, ridge height and footprint of the buildings would be the same as the approved scheme. The appeal site relates solely to the blocks and plots where changes are intended. Both parties agreed that the proposal comprises these extra works only and I shall deal with the appeal on that basis.” (emphasis added)

The inspector then considered that the effect of proposed development on the openness of the green belt would be neutral and that it would not harm either the character or the appearance of the area or the visual amenities of the green belt. Moreover, the design complied with relevant Local Plan policies. The proposals provided a reasonable amount of useable private amenity space for all future occupiers, the standard of the new accommodation provided in the roof space was adequate, was not claustrophobic and provided a satisfactory internal environment. Therefore, the inspector disagreed with and reached different conclusions from the sub-committee on the issues of design and planning benefit, being the issues which had led to its adverse decision that departed from the recommendation of the reporting planning officer.

The decision, however, reached an adverse conclusion on the fourth issue relating to the inappropriate nature of the development. The Inspector concluded that:

“Final balancing and Conclusion

31.

I find that the effect of the proposal on the openness of the green belt would be neutral and that there would be no harm to the character and appearance of the area or the visual amenities of the green belt. Furthermore, the living conditions for future occupiers would be satisfactory having regard to the provision of garden space and the internal environment. The proposal would not be contrary to any of the development plan policies cited.

32.

However, the proposal would be inappropriate development in the green belt. PPG 2 prescribes that substantial weight should be given to the harm by reason of inappropriateness. Most of the other considerations that I have referred to are inconsequential. However, significant weight is attached to the additional housing that would be provided and particularly affordable housing. In the final balance, the amount of weight in support cannot be said to clearly outweigh the harm by definition. As a result, the very special circumstances necessary to justify the development do not exist. So, for the reasons given, my final conclusion is that the appeal should not succeed."

On behalf of Taylor Wimpey, it was submitted that the Inspector’s decision in dismissing the appeal was flawed on account of two serious and inter-related errors in the reasoning.

Firstly, it was submitted that the Inspector had erroneously concluded that the appeal site and the proposed development only related to the proposed changes to the approved development. Secondly, it was submitted that he had then concluded that no very special circumstances existed to justify that proposed development. This was an erroneous conclusion because it took no account of the highly material consideration that the approved scheme which the proposed development was seeking to amend had already been granted planning permission because it was justified by very special circumstances which outweighed the inappropriate nature of the development. That previous finding was highly material because the only significant differences between the approved scheme and the proposed development were beneficial in that the proposed development provided a more efficient use of the site with seven more residential units and four more affordable housing units. This had been achieved without increasing the footprint of the approved scheme whilst decreasing the overall volume of the built form. In those circumstances, the previous finding was highly material but the Inspector had failed to take it into account. In those circumstances, the decision should be quashed as being one that had failed to take account of a highly material consideration, was irrational and was in consequence supported by totally inadequate reasons.

On behalf of the Secretary of State, it was submitted that the Inspector had determined the appeal on the agreed basis that the appeal site related solely to the blocks and plots where changes were intended and only comprised those extra works. He was right to do so. Thus, he was correct to consider the extent of the changes and to consider whether there were very special circumstances that justified those changes without taking account of the very special circumstances that had been found to justify the approved development since that related to the entire site and not to the very limited site of the proposed development.

The planning legislation does not provide for a simple application to amend an existing permission but it does provide various different ways that such an application can, in substance, be made and provided for. Since the approved development had already been started when the application was made, Taylor Wimpey needed to obtain permission of a kind that would enable it to complete the partially completed development in its amended form in a way that enabled it to do so without complying with conditions in the outline and reserved matters approvals that had limited the number of dwellings that could be constructed and that also required strict compliance with each of the long list of drawings approved by the reserved matters approval. Such a permission can be applied for and granted by section 73A of the TCPA which provides that:

“(1)

On the application made to a local planning authority, the planning permission which may be granted includes permission for development carried out before the date of the application.

(2)

Subsection (1) applies to development carried out -

……….

(c)

without complying with some condition subject to which planning permission was granted.”

The application that Taylor Wimpey submitted was stated to relate to the entire development site and to be an amendment to the permitted development which had already started. Its effect, therefore, was to seek permission to complete the permitted development in an amended form without complying with all of the restrictions originally imposed that had related to the number and layout of dwellings or with the obligation for strict compliance with many of the originally approved drawings.

On behalf of the Secretary of State it was contended that the proposed development was not presented as a section 73A application and, moreover, none of the development provided for in the proposed development had been started. Moreover, the application had encircled the dwellings affected by the application with a red line and that showed that the application only related to those dwellings or to changes to those dwellings. Thus, the proposed development was confined to the particular changes to the approved development that were sought or, as an alternative, to the dwellings encircled by the red line on the layout drawing.

However:

It follows that the development was incorrectly characterised by the Inspector as being one confined to the variations to the permitted development that it provided for. It was also submitted on behalf of the Secretary of State that the parties had consented to the appeal being decided on that limited basis. However, the decision merely states that the parties had agreed that the proposal only comprised the relevant extra works. All that that agreement means is that the difference between the approved development and the proposed development is to be found by considering the extra works defined in paragraph 5 of the decision letter. That is not an agreement that the proposed development is confined to such extra works, merely an agreement that the nature of the proposed development may be ascertained by an examination of those extra works.

The Inspector concluded that in the final balance, the amount of weight in support of the proposed development did not clearly outweigh its definitional harm so that the very special circumstances necessary to justify that development did not exist. That conclusion was one which took no account of the fact that the development the Inspector was considering was an amendment of a development in the course of construction which had been permitted because it was justified because of its very special circumstances. However, the amendments being considered had been found to improve the approved development without providing any additional harm. Thus, had the Inspector had due regard to the additional consideration that the approved development, which was already being constructed, had already been found to be justified because of its very special circumstances, it is clear that the Inspector’s conclusion dismissing the appeal would have been different unless he had been able to provide compelling reasons for still dismissing the appeal notwithstanding that previous decision.

It follows that the Inspector failed to take account of a very material consideration in circumstances where that consideration would, or certainly would probably, have had a decisively different effect on the decision. In short, the decision would, or would probably, have been favourable to Taylor Wimpey. The decision must, therefore, be quashed. I am not asked, and have no power, to consider substituting for that decision, one which allows Taylor Wimpey’s appeal to the Inspector. Any future consideration of that appeal will, however, need to take account of this judgment.