O'Donnell v Welsh Ministers & Anor

The claimant, Mr O'Donnell, lives in a dwellinghouse known as Moatenwell in the hamlet of Kingcoed near Usk in Monmouthshire. The house is set in substantial grounds. By an application dated 10 December 2010 he applied to the second defendant as the local planning authority ("the authority") for outline planning permission to build a three-bedroomed dwelling house together with an integral garage in the northern part of the grounds within the curtilage of the property. It is accepted that the proposal is not in association with agriculture or with forestry.

On 20 January 2011 the authority refused to give such permission. The two main reasons given were that the proposal would be contrary to two of the housing policies of the Monmouthshire Unitary Development Plan (the “UDP”) adopted in 2006: firstly Kingcoed was not a settlement identified in the UDP as suitable for new build housing (policy H5); secondly, the proposed build would be in the open countryside, and as it was not in association with agriculture or forestry it would be contrary to the general policy H6 against such development Mr O'Donnell appealed under section 78 of the Town and Country Planning Act 1990 ("the 1990 Act") to the first defendant, the Welsh Ministers. The latter transferred authority to determine that appeal to the appointed inspector, Mr Thickett, who considered the appeal on written representations by the parties. In his written decision dated 19 May 2001 he dismissed the appeal. Although he agreed with Mr O'Donnell that the proposal was an exception to policy H5, because it amounted to a subdivision of land, he went on to conclude that, as the appeal site lies in the open countryside, it conflicted with policy H6 and with national policy set out in the document called Planning Policy Wales. The fourth edition of that document was adopted by the Welsh Government in February 2011.

By a claim form issued on 23 June 2011 and amended pursuant to order dated 6 September 2011, Mr O'Donnell appeals to this court under section 228 of the 1990 Act on the basis that the inspector was wrong in four respects: 1) in concluding that policy H6 is in line with PPW or assuming that the site lies outside the defined settlement boundaries; 2) in failing to consider whether as a sub division of land the proposal might be favourably considered under policy H5; 3) in failing to consider how policies H5 and H6 have been applied in other cases; and 4) in concluding that a decision of another inspector in allowing an appeal and granting permission for change of use from an existing outbuilding to a dwelling at Brookside Farm (Brookside) in another settlement called Nantyderry could be ignored because it was factually distinct.

There is no dispute before me about the principles which apply. Section 72 of the 1990 Act provides that, in dealing with an application of planning permission, a local authority shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations. By section 79(4) the same applies to appeals under section 228. By section 38(6) of the Planning and Compulsory Purchase Act 2004 the following is provided:

“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 plan unless material considerations indicate otherwise.”

By section 38(4) for the purposes of England and Wales any reference to the development plan means the local development plan adopted or approved in relation to that area. A draft deposit local development plan is in existence but at the time of the inspector's decision the local development plan was the UDP.

It is well established that section 288 is a provision enabling the normal grounds for judicial review to be relied upon. In Ashbridge Investments Limited v Minister of Housing and Local Government [1965] 1 WLR 1320 Lord Denning MR applied a similarly worded provision of the Housing Act 1957 and said this:

The Court of Appeal in the Secretary of State & Anr v Sainsbury Supermarkets Ltd [2007] EWCA Civ 1083 at paragraphs 22, 55 and 56 referred to the proposition referred to above as being well established in relation to appeals under section 288. It is also agreed before me that if the inspector has misconstrued or misapplied the relevant policies of the UDP such that if he had not done so the decision might have been different, and if the decision has prejudiced Mr O'Donnell, the court will quash the decision: see R (Rosy Homes Limited) v First Secretary of State & Anr [2003] EWHC 2199 (Admin). I therefore turn now to the UDP.

That has policies for housing numbered H1 to H15. H1 deals with proposed larger sites of ten or more dwellings not yet developed but expected to be completed before 2011. H2 deals with a number of large sites in urban areas for completion. H3, to which I will come to in more detail in a moment, deals with towns and villages within the development boundaries which have been drawn where planning permission will be granted. H4 deals with a number of villages not within the development boundaries where planning permission will be granted for infill and new residential development or redevelopment or conversion to a residential subdivision of large dwellings. H5 deals with what is called minor settlements where new residential development will not be permitted generally. H6 deals with new dwellings in open countryside where they cannot reasonably be located in the nearby settlement residential property or by residential conversion of an existing building. These must be essential for nearby agriculture or forestry. H7 to H15 then deal with a number of exceptions to that general policy. H7 deals with conversion or rehabilitation of buildings in the open countryside permitted by reference to various strict criteria. H13, for example, deals with replacement of existing dwellings in open countryside. Each one of the exceptions is a specific exception.

In order to understand the grounds advanced in this appeal it is necessary to have regard to some of those policies in greater detail as well as to the explanatory test. H3, as I have indicated, defines development boundaries. It refers to development boundaries having been drawn for certain towns and villages which are named. Within those boundaries planning permission will be granted for new residential development/redevelopment or conversion to residential or sub-division of large dwellings or reuse of accommodation such as vacant upper floors in town centres. But that was subject to detailed planning considerations.

At paragraph 4.6.1 of the explanatory text this is said:

“4.6.1

Most of Monmouthshire’s settlements have expanded to clearly defined or natural boundaries because of high levels of residential development since 1961. Notwithstanding this, within the Development Boundaries for the settlements listed under Policy H3 there are still existing opportunities for new residential development over and above those sites listed under Policy H1. Some of these sites are identified on the Proposals Map Insets. Outside the town and village development boundaries listed in Policy H3 residential development proposals will be subject to the provisions of Policies H4 - H7 inclusive.

4.6.2

In drawing the Development Boundaries, the Council has sought to achieve the following aims:

To protect the settings of towns and villages and their high quality environment for the benefit of residents, and to attract tourism and other suitable economic developments, not least by protecting the major amenity and economic asset of the countryside from unnecessary urban sprawl. For this reason, the Development Boundaries have been drawn to delimit areas within which there will be a presumption in favour of new residential development (subject to detailed planning considerations and other policies / proposals in this Plan); outside the Boundaries, policies for the ‘open countryside’ will apply. The Boundaries include most of the built-up areas including some parts of settlements, which presently have loose knit edges where spaces between buildings smooth the transition between town or village and open countryside.”

Then H4 comes under the heading “Villages Potentially Suitable For Minor Infill Residential Development” and provides:

“In the following villages planning permission will be granted for infill new residential development/ redevelopment or conversion to residential or sub-division of large dwellings...”

In respect of PPW the principles which underline the Welsh Assembly Government's approach to planning policy for sustainable redevelopment are set out in paragraph 4.3.1. Key policy objectives are set out at paragraph 4.4.1 and 2. 4.6 sets out a sustainable settlement strategy in the location of new development. Under that heading this paragraph appears, 4.6.8:

“Development in the countryside should be located within and adjoining those settlements where it can be best be accommodated in terms of infrastructure, access and habitat and landscape conservation. Infilling or minor extensions to existing settlements may be acceptable in particular where it meets a local need for affordable housing, but new building in the open countryside away from existing settlements or areas allocated for development in development plans must continue to be strictly controlled. All new development should respect the character of the surrounding area and should be of appropriate scale and design.”

At section 9 objectives are set out and it is said that the Assembly Government would seek to ensure that the overall result of new housing development in the villages, towns or edge of settlement is a mix of affordable and market housing that retains and, where practical, enhances important landscape and wildlife features in the development. Paragraph 9.2.5 under that section provides as follows:

I turn now to the appeal decision itself. Having dealt with the argument in relation to policy H5 and having disagreed with the council that the provision of that policy against new residential development indicated the subdivision of land was not acceptable, the inspector went on to say this in paragraphs 5 to 7:

The inspector then went on to deal with the character and appearance of the proposal and agreed that that could not cause unacceptable harm and also that it would not have an adverse impact on the character and appearance of the area. However, in light of his conclusions regarding the local and national policy, his findings on the character and appearance of the area do not (inaudible) the conflict which he found.

I turn now to ground 1 of this appeal. At the heart of this ground is the extent to which there is a conceptual difference between countryside and open countryside in the housing policies of the UDP and in the PPW. It is not in dispute before me that the planning policy is taken generally; there is a difference, but it is also accepted that there can be some confusion.

Mr Littman, on behalf of Mr O'Donnell, put before me an extract from the inspector's inquiry report dated November 2005 into the UDP. It is a one-page extract. Mr Walters, for the Welsh Ministers, made it clear that because this document was produced so late in the day it was not possible to retrieve from the outcomes of the Welsh Ministers other relevant documentation, including the response of the authority to the inspector's recommendation and the response of the Welsh Assembly Government. Accordingly, whilst not objecting to my seeing the extract by way of background, he submitted that it was not safe to use this small extract from the very large report as an aid to interpretation of the UDP.

In considering the then draft policy H6, the Welsh Assembly Government had pointed out that there was a potential confusion between the terms “countryside” and “open countryside”. In response, the authority said that it was intended to amend the glossary. The glossary suggested that there is no difference between countryside and open countryside.

The inspector went on to say this in paragraph 7.7.2 of his report:

The first recommendation was complied with but the second was not. Mr Walters accepts that it would have been clearer not to use both terms interchangeably, for example in paragraph 4.6.22 of the text of the UDP.

Mr Littman submits that there is a clear differentiation in PPW between “countryside” and “open countryside” and in the strictness of control which is envisaged for each. At paragraphs 4.6.8, 9.2.22 and 9.3.6 of PPW there is reference to open countryside as "away from existing settlements" and a requirement that such development must be strictly controlled. It was not in dispute before me that Kingcoed is recognised as a settlement in H5 of the UDP, albeit a minor one; nor was it in dispute that the site of the proposal falls within that settlement. Moreover, Mr Littman accepted that PPW does not aim to define countryside or open countryside or the degree of control which should be applied to each. He further accepted that such decisions must be for local planning authorities to make in bringing forward their development plans. He submits, however, that what is not permissible is for the local planning authority to apply strict control to open countryside and countryside alike, as the housing policies or the UDP seeks to do.

Mr Walters does not shirk from accepting that that is precisely what the UDP sets out to do by defining settlement boundaries in policies H1 and H3, where there is a presumption in favour of development, and the countryside or open countryside beyond the boundaries, where there is a presumption against development, unless it comes within one or more of the specific exceptions set out in H7 to H13. In his words, the proposed development is either in or out of such a settlement boundary. He accepts that the strict control envisaged in PPW applies only in open countryside and that PPW does not seek to define that term. He submits, however, that nowhere in PPW is it said that there can be no strict control in the countryside which may not be categorised as open. At the highest, he says, it is silent; it is not permissible to apply a definition of open countryside in PPW. That is for the UDP, which is the development plan to which regard must be given pursuant to Section 38.

In my judgment on this point the latter submissions are to be preferred. In my judgment PPW recognises in paragraph 4.6.8 that development in the countryside should be located within and adjoining those settlements where it can be best accommodated in terms of infrastructure access and habitat and landscape conservation. In paragraph 9.2.22 there is a requirement that new houses in the countryside away from existing settlements, recognised in the development plans or other areas allocated for development, are strictly controlled. As I have indicated, it is accepted that the proposed site is in an existing settlement within the meaning of this paragraph. It is clear, however, in my judgment that PPW envisages that in many parts of the countryside isolated groups of dwellings and infill or extensions of these groups may be acceptable, but it must depend on the character of the surrounding area, the pattern of the development in the area and accessibility to main towns and villages. These matters, in my judgment, are clearly matters for the development plan. The UDP in the present case, in paragraph 4.3.3, specifically refers to the fact that Kingcoed is located within a special landscape area and would be damaged by infill development. It is provided that such damage is unnecessary as both opportunities are available in those areas identified in page 3 and page 4. That is a matter of planning judgment for the local planning authority as envisaged by PPW.

It is not necessary, however, that the UDP is "in line with PPW" as concluded by the inspector. Mr Walters accepts that PPW is a material consideration within the meaning of section 38 put forward to be considered. He submits that there is no tension between them, but if there is then it is of the mildest kind. PPW is silent on whether restrictive control should be applied in open countryside or countryside alike. In my judgment this does not appear on the face of the inspector’s decision. It does not appear to have been recognised by the inspector and it was a material consideration.

Mr Walters submits that as the PPW says nothing about the control in areas other than open countryside then there is no policy which outweighs the UDP. He refers to a well known decision in Bolton MBC v The Secretary of State for the Environment & Greater Manchester Waste Disposal Authority [1991] 61 P and CPR 343, where the Court of Appeal considered, in the area of compulsory purchase, whether there had been a failure to take into account a relevant consideration. Glidewell LJ reviewed the authorities on material consideration and the extent to which the decision-makers could be said to have failed to take into account and the consequences of so doing. At page 352 he said this:

“I venture to suggest that from the authorities generally, and particularly those to which I have referred, one can deduce the following principles:

1.

The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J.’s judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way Lord Greene put it in Wednesbury and Lord Denning in Ashridge Investments have the same meaning.

2.

The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he had not taken it into account. Such a matter is relevant to his decision making process. By the verb “might” I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

3.

 If a matter is trivial or of small importance in relation to a particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.

4.

As Hodgson J. Said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.

5.

If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.

6.

If the judge concludes that the matter was “fundamental to the decision”, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision making process, then he does not have before him the material necessary to conclude that the decision was invalid.

7.

(Though it does not arise in the circumstances of this case). Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”

Mr Littman accepts that unless there is a specific policy of the PPW contrary to that of the specific policies in the UDP, the former could not be said to outweigh the latter, but he maintains that the inspector is wrong in the present case to say that policy H6 was in line with PPW, which is why it contemplates less strict control in the countryside rather than the open countryside. As I have already indicated, that in my judgment was a matter of planning judgment which PPW entrusts to the local planning authority in bringing forward development plans. To the extent that the inspector did not sufficiently recognise this by saying H6 was in line with PPW, I am not satisfied that there is a real possibility that such recognition would have made any difference to the decision.

If there is uncertainty as to whether it would have made a difference or not, then it has not been shown that the decision was invalid.

In my judgment therefore ground 1 of the appeal is not made out.

I turn now to ground 2. Mr Littman refers to the policy H5 and to the explanatory text at paragraph 4.3.3. He submits that in construing those paragraphs at (inaudible) words of the policy, which set out the general rule and then specifically lists"conversion and subdivision", as exceptions which may be "may be favourably considered”, leads to a (inaudible) feature which may throw light upon how an approach should be made to an application in respect of new residential development consisting of a conversion or subdivision in Kingcoed. He submits there is nothing apart from the significance of the status of a special landscape area whether in the paragraphs explaining H5 itself or in H6 or the further policies which follow. He submits that the words "which may be further considered" must be applied without deletion. He accepts that these words were quoted by the inspector in the third sentence of his decision, but no further reference was made to them, and there is nothing to indicate, submits Mr Littman, that he bore them in mind when reaching his decision. Paragraphs 5 and 6 of the decision read as though they had "slipped his mind".

Against that, Mr Walters submits that it is clear that any development within H5 is subject to related policies, including H6. He submits that the proper interpretation of the policies is that new housing which does not conflict with policy H6 or any other policy may be favourably considered. His submission that a development contrary to policy H6 may be favourably considered and that the inspector erred by not referring to the potential to admit the proposed development if it had not conflicted with the policy H6 is incorrect. The inspector, submits Mr Walters, is not obliged to consider hypothetical or indeed alternative grounds for refusal.

In my judgment the inspector had sufficient and proper regard to the explanatory text in policy H5 which clearly requires reference to policy H6.5.8.1. It is clearly set out that new housing in settlements not listed in the policies page 3 or page 4 will be subject to policies H6, H7, H8, H10 and H13. Again I am not satisfied that ground 2 is made out.

I turn to ground 3. What happened before the inspector was that Mr O'Donnell emailed to the inspector a document headed “Previous MCC UDP H5 Exception Decisions”. The document continues by way of title:

There then follows what is called Table A. In respect of a number of decisions the reference is given, the local classification is given, which in each case is H5, and then in each case the policy applied by the authority is also given. In all cases the policy applied is either H7 or H13. The exception to 5 is then noted and, in all cases bar one, the exception is either noted as "conversion" or "replacement". In respect of the last decision referred to, the exception applied was said to be "subdivision".

Then in the final column, under the heading “Approved”, the settlement referred to is set out, and two or three of those were in the settlement of Kingcoed.

The authority responded to that table and to the allegation that it had been inconsistent in its application of housing policies to housing proposals in H5 settlements. Reference was made to that table. The response continued as follows:

In my judgment, in respect of the table presented to the inspector, referring as it did to policies H7 or H13, the inspector was entitled to take the view which he did in relation to this evidence. There was not a sufficient indication before him or indeed before this court as to the details of each of the decisions which amounted to a case of a consistent approach by the authority which dictated that the inspector in considering the present proposed development should follow. Mr Littman submitted that the inspector could have done one of two things and should have done one of them. He should have accepted that there was such an approach by the authority and should have taken it into account at least in his decision, or he should have requested further details from the parties of such decisions. I am not satisfied that the inspector should have followed at least one of those options. It is for appellants to put their case before the inspector, and on the information which he had, in my judgment, he was entitled to proceed as he did.

Accordingly, ground 3 is not made out in my judgment.

That leaves ground 4. Mr Littman submitted that the inspector's reference to the Brookside Farm decision was inadequate. That decision, as I have indicated, was of a different inspector and is dated 15 April 2009. The permission required was for change of use of an existing outbuilding to a dwelling at Brookside in Nantyderry. The inspector allowed the appeal and granted planning permission.

In paragraph 6 of that decision the inspector referred to the policy H5 and to paragraph 4.8.1, noting that the residential conversions in the settlements not listed in policy page 3 or page 4 which include Nantyderry would be subject to policy H6, H7, H8, H10 and H13. The inspector went on as follows in paragraph 7:

Mr Littman submits that that inspector noted that only H7 specifically referred to the conversion or rehabilitation buildings in the open countryside and that it would be agreed if the site was within the settlement of Nantyderry in open countryside observed that there was some question as to the credibility of H7 in the case. Mr Littman submits that the inspector did not treat H6 as having any relevance. It opens with the words “New dwellings would only be permitted in open countryside”. Further, submits Mr Littman, the approach of the college to a similar case was relevant to the decision facing the inspector in the present case, but he did not pay any attention to it because he said that that related to the change of use of an outbuilding and not the subdivision of a plot to accommodate a new house. The point of citing the Brookside Farm case, submits Mr Littman, was to show how H6 was not applied to it, and Mr Walters submits that the concession by the (inaudible), including the authority in that case, that the site was not in the open countryside was wrong; but, given that concession, he submits that the inspector's approach in the Brookside case was a proper approach and that the result was a proper result. He submits that therefore that the inspector in the present appeal decision dealt with that accordingly. Again in my judgment, the submissions of Mr Walters are to be preferred. In my judgment the inspector in the present case was entitled to deal with the Brookside case in the way that he did. Having come to the conclusion which, in my judgment, was a conclusion he was entitled in coming to that the proposal in the present case was in conflict with development plan and with the policy H6, he was entitled to dismiss the appeal.

Accordingly, I dismiss this appeal.