Scrivens v Secretary of State for Communities & Local Government

There are three matters which were heard together and which are dealt with in this judgment. Two are applications under s.288 of the Town & Country Planning Act 1990 against two decisions of inspectors dismissing the applicant’s appeals against the refusal by the interested party of planning permission or its failure to determine the application. The third is a claim for judicial review of the inspector’s decision to award costs against the claimant following dismissal of the appeal in the second application. I shall refer to Mr Scrivens as applicant and the Secretary of State as respondent in this judgment.

The first application is against the decision of an inspector, Mr John Woolcock, to dismiss three conjoined appeals in relation to the erection of a dwelling at Longberry Farm, Bettersden, Ashford, Kent. I shall refer to these as Woolcock A, B and C. The second application relates to the decision by Mr Christopher Bowden to dismiss the applicant’s appeal against the refusal of planning permission for the erection of a new dwelling at Longberry Farm. This I shall refer to as the Bowden decision. Since the claim for judicial review of Mr Bowden’s decision in relation to costs is, if it does not fall away because I find in favour of the applicant on his s.288 application, accepted by the respondent to have been erroneous on the only ground on which permission for judicial review was granted it will only require short consideration. I will leave it to the end of this judgment and concentrate on the two s.288 applications.

The basis upon which Mr Bowden awarded costs was the excessive amount of material submitted by the applicant which he decided was unreasonable. In support of the applications before me, the applicant has shown the same vice. His final so-called skeleton argument ran to 252 paragraphs over some 122 pages. In addition, he lodged five lever arch files totalling 1793 pages. Much of this was not relevant or helpful in considering the issues which arose in these applications.

The applicant has attempted to use these applications as an attack on the manner in which the defendant through the National Planning Policy Framework Strategy (NPPF) has applied the Renewed EU Sustainable Development Strategy 10917/96 and the alleged failures by the two inspectors to apply a proper approach to and understanding of sustainable development in dealing with the appeals. In addition, he has asserted that the system whereby appeals are heard by inspectors appointed by the defendant contravenes Article 6 of the ECHR. The applicant did not develop this in his oral submissions and, in the light of authorities which lay this argument to rest, I need not do more than say that it is unarguable. He was also concerned that each inspector had determined the appeals on paper rather than holding an inquiry. As each stated, there was no need for an inquiry since all the issues had been fully explained in the documents submitted – indeed, to an more than necessary extent – and so a proper decision could be reached without the expense of an inquiry. Each inspector was entitled to deal with the appeal before him as he did.

The applicant describes himself as an eco-technologist. He lectures regularly on topics contained in the NPPF and in particular he is, he says, very familiar with the concepts and the exact meaning of words contained in the NPPF. The inspectors like all their colleagues have, he says, failed to apply either the concepts or the wording of the NPPF since they have failed to understand the true meaning of sustainable development. The dwellings which are the subject of three of the original applications, namely Woolcock A and C and Bowden, are all designed to comply with the true meaning and extent of sustainable development. Each is designed to be autarkic, namely self-sufficient, that is to say, not dependent on any finite source of energy, water or other needs for living in the 21 ^st century. And this approach is essential, he says, since oil and natural gas will run out in the foreseeable future and alternative sources will not fill the gap. Thus autarkic houses must be developed. Furthermore, his applications relate to innovative and to an extent experimental dwellings to establish that an autarkic approach can work – indeed, the applicant is adamant that it must work.

The legal framework which governs the approach which must be adopted in considering applications for planning permission and which is material to these applications is contained in s.70(2) of the 1990 Act and s.38 of the Planning and Compulsory Purchase Act 2004. S.70(2) provides, so far as material:-

the provisions of the development plan, so far as material to the application …

any other material considerations.”

The NPPF is not a plan nor is it to be regarded as a policy statement within the meaning of Part 2 of the Planning Act 2008 – see s.5 of that Act. It is however a material consideration. In the adoption of development plan documents, the local planning authority must, in accordance with s.39(2) of the 2004 Act, “exercise the function with the objective of contributing to the achievement of sustainable development”. S.39(2A) states that the LPA “must (in particular) have regard to the desirability of achieving good design”. And s.39(3) requires the LPA to have “regard to national policies and advice contained in guidance issued by … the Secretary of State ”. While this refers to the preparation and production of development plans, it is self evident that in deciding any individual application for planning permission, regard must be had to the objective of achieving sustainable development and, if the existing plans do not meet the requirements of s.39, they will not prevail if in such a case the need to achieve sustainable development would be frustrated.

The buildings for which the applicant has sought planning permission are all designed to avoid any reliance on non-renewable energy. Accordingly, they accord with Directive 2010/31/EU which by Article 9 requires Member States to ensure that by 31 December 2020 all new buildings are nearly zero-energy buildings. The Directive requires that all new buildings to be constructed after it comes into effect, namely June 2010, must comply with minimum energy requirements set with a view to achieving cost-optimal levels. A ‘nearly zero-energy building’ is defined in Article 2.2 to mean:-

The applicant relies too on the Renewed EU Sustainable Development Strategy (10917/06). This is not a Directive, but is properly to be regarded as material when read in conjunction with the Directive 2010/31/EU. The EU commitment to sustainable development states, so far as material, as follows:-

This is no doubt all highly desirable but it shows that the concept is very wide and is not necessarily limited to particular concerns about energy. The NPPF under the heading ‘Achieving sustainable development’ quotes the definition of sustainable development given in Resolution 42/187 of the UN, which is that it meets:-

An economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and requirements, including the provision of infrastructure;

A social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being; and

An environmental role – contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy. ”

The NPPF makes it plain that there is a presumption in favour of sustainable development and that, while planning law requires that applications must be determined in accordance with the development plan unless material considerations indicate otherwise, the plan and any decision must reflect this presumption. Paragraph 14 sets this out as follows:-

Local planning authorities should positively seek opportunities to meet the development needs of their area;

Local plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless;

Approving development proposals that accord with the development plan without delay; and

Where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

Paragraph 17 makes plain that there are a number of different matters which should be taken into account. Of particular relevance to this case are these bullet points:-

always seek to secure high quality design and good standard of amenity for all existing and future occupants of land and buildings;

take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it.

The applicant says that Woolcock A and C and Bowden are designed to show that a sustainable house is technically possible and will enable people to live comfortable lives when the hydrocarbon supply is depleted, as it will be. Furthermore, a sustainable building can never look traditional and so to require that it should mean that there can be no buildings which can function after 2020 since none can reach the ‘nearly zero-energy’ test. Thus ‘high quality design’ must be read in this context.

The applicant’s case in essence is that sustainable development is synonymous with autarky since any development which does not reach the required ‘nearly zero energy’ test will inevitably compromise the needs of future generations. He has set out in his submissions what he states are the five key requirements of the NPPF and EU Directive. The five are set out thus:-

I was invited to indicate what should be the definition of sustainable development if not the Pentalogy. I do not think that it is desirable that I should attempt to do that. What is sustainable in any particular circumstance will depend on a number of material factors. It is, for example, clear that however compliant with energy considerations development will not necessarily be permitted if in the Green belt or areas of outstanding natural beauty. Section 39(2A) of the 2004 Act requires that regard be had to good design. This is also set out in s.10(3) of the 2008 Act together with the need to have regard to mitigating, and adapting to, climate change. The NPPF refers to the need to protect the environment and to recognise the intrinsic character and beauty of the countryside.

While the future exhaustion of energy services is very important, there has to be consideration given to the needs of the present as well as the future. Thus, for example, a development which, however autarkic, is entirely out of place or would adversely affect in economic terms a neighbouring community, could properly be refused. Furthermore, an unsightly development in the countryside could also adversely effect future generations. As the NPPF and the statutory provisions make clear, sustainability is not limited to the Pentalogy, important though that is in considering any particular application. As always in planning cases, a balance has to be drawn between what is provided in any plan and any other material considerations. A judgment must be exercised.

I have no doubt that this, as many applications under s.288, depends on whether the inspectors have failed to exercise their judgments in accordance with the law. Disagreement with those judgments is not a basis for setting aside a decision. I reject the applicant’s argument that once he showed compliance with the Pentalogy his appeals should be allowed. Whether the contravening considerations lacked substance and so it was an error of law to use them to justify dismissal of the appeals I must consider. But that the inspectors were entitled to have regard to the various matters I have no doubt.

In paragraph 11 of his decision, Mr Woolcock stated:-

That approach is unquestionably correct, since I am satisfied that the Pentalogy and so energy considerations do not constitute a trump card whatever may be considered to be the harm of the proposed developments. He recognised that the applicable plans did not reflect the changes required by the NPPF, but the Regional Spatial Strategy for the South East of England of 2009 (RSS) did contain policies which set out sustainable development priorities and were, as Mr Woolcock stated, consistent with NPPF provisions. The council’s Core Strategy of 2008 referred to the need to protect the countryside and for design which has regard to character, distinctiveness and sense of place. And there were in a 2010 Development Plan Document specific considerations to be given to replacement buildings in the countryside. They should be only a modest increase in size and should protect and enhance the landscape character of the area. None of these seem to me to be off limits in the context of the desirability of permitting sustainable development.

Mr Woolcock recognised that A was placed away from the road and other buildings so that it could, as he put it, ‘capture energy from the environment, both from the sun and the wind’. This the applicant said was essential since it was to an extent experimental to show that it could produce near zero energy. It needed too a design which enabled use to be made of the sources of energy in question. Mr Woolcock felt that its scale and design would be a striking feature in the open landscape and out of keeping with the intrinsic character of the rural area. These are of course material planning considerations. However, the applicant makes the point that a dwelling which is to comply with the requirements of the EU Directive and which is to meet future needs by being autarkic must be situated where it can take advantage of the material sources of energy. He also draws attention to NPPF paragraph 60 which states:-

The applicant asserts that the delivery of near zero-energy buildings is currently beyond the capabilities of British Architects and contractors. To comply with the EU energy requirements such buildings must be allowed even if they are out of character at present. The approach of both inspectors means, submits the applicant, that while new development must produce houses which comply with the Pentalogy, a design and a location is the only place that will permit such compliance will not receive planning permission. Whether or not the Pentalogy is to be the only true result of the EU requirements, energy saving clearly is. There is some force in the concern expressed by the applicant, but it is permissible for a decision maker to decide as a matter of judgment that this house in this location however satisfactory in meeting energy requirements cannot be permitted because of its harm to a particular area.

It is apparent that Mr Woolcock was well aware that development A (and he makes the same observations in relation to C) would provide for renewable energy and would support the transition to a low carbon future in a changing climate. However, it was his view that neither A nor C would recognise the intrinsic character and beauty of the countryside. The weight to be attached to contravening considerations is, unless irrationality can be established, a matter of judgment with which this court cannot interfere. While I recognise and have some sympathy with the applicant’s concerns that because a design and location which can produce near zero-energy is likely to mean that the building is out of sympathy with the area in question, such a desirable building will not be allowed. Nevertheless, it is a matter of degree and I have no doubt that Mr Woolcock was entitled to conclude as he did in the circumstances of A and C to which similar considerations applied.

B raised a separate point. It was of a similar size and design to a replacement dwelling at an adjacent property, Longberry Cottage, which had been granted permission. The applicant submitted that this created a legitimate expectation that his application would be allowed. The same argument was raised in relation to A and C. While I would not rule out the possibility of the application of legitimate expectation in a particular case, it will not normally apply where a neighbour has obtained permission for a similar development but one which is not identical. It will be rare indeed for a planning judgment to be effectively ruled out in a particular case because of a similar grant or refusal in another case. No doubt consistency is a material consideration and a failure to act in a consistent manner may constitute a failure to have regard to a material matter or even irrationality. Equally a prior favourable decision of a previous application may render a subsequent refusal unlawful if there has been no material change of circumstances.

In this case, Mr Woolcock identified what he regarded as material differences which rendered all three applications unacceptable. I have had my attention drawn to the plans and photographs which were produced. Mr Woolcock relies on the placement further from the road than that permitted for Longberry Cottage and so the effect on the countryside. I am bound to say that the contention of the applicant based on the distance from Longberry Cottage of only 100 metres and that B and C would be more low lying and better screened carries weight. But, as I have said, weight is for the inspector and it cannot be said that his decision was irrational.

The applicant raised an argument before the inspector that there had been a breach of Article 8 of the ECHR. He did not raise it in his grounds. He was right not to do so since, even if Article 8 applied (which I doubt) the planning considerations which led to the refusals meant that any interference was proportionate.

The applicant relies on the support given by the councils’ planning officer to Woolcock C. However, the decision was not for him but for the committee and subsequently the inspector. That goes to judgment and cannot be relied on to show any error of law.

The Bowden application was not, unlike the three Woolcock applications, for a replacement dwelling but for a new dwelling in the countryside. It was an innovative design intended to show (in this being to a considerable extent experimental) that near zero-energy could be achieved. The same principles applied to Woolcock A and C but were clearly established for Bowden. The applicant recognised that a new dwelling house in the countryside would not be in accordance with the plans and so he relied on Paragraph 55 of the NPPF. The inspector approached the appeal on the same basis.

The fourth bullet point under Paragraph 55 is the relevant provision. It states that new isolated homes in the countryside should be avoided unless there are special circumstances. Four such circumstances are set out, the fourth reading:-

be truly outstanding or innovative, helping to raise standards of design more generally in rural areas’

reflect the highest standards of architecture,

significantly enhance its immediate setting, and

be sensitive to the defining characteristics of the local area.”

It is, I think, helpful to set out paragraphs 10 to 12 of Mr Bowden’s decision since they explain the basis upon which the applicant put his case. They read as follows:-

Mr Bowden then dealt with the matters set out in the NPPF and considered whether the application met its requirements. He raised a number of objections. The first was that the autarkic approach was unlikely to be of wide application because if the amount of land required for the supporting infrastructure. This was, the applicant submitted, an error of fact. While some would be needed, it was not extensive. Suffice to say that I think there is some merit in that complaint, but it is only one of a number of objections and, if there was an error, it could not detract from the overall decision. In essence, this was that the location was inherently unsustainable for a new house well away from shops and other facilities and the suggestion that occupants could and would walk or cycle or use cars powered by electricity or gas generated on site was not one which could be accepted as a guarantee for the future.

Mr Bowden then criticised the design because to his view it would not reflect the highest standards in architecture. He also identified the infrastructure. All this produced what he called a large utilitarian structure that bore no resemblance to its context. This approach the applicant criticises since it was necessary that the house should be able to function as intended and the design was the only design which would achieve that objective. Thus to reject it on aesthetic grounds was impermissible since that would rule out any innovation and attempts to meet energy requirements for the future. Mr Bowden was entitled to consider this proposal in the particular location and to decide that it did not meet the test set out in Paragraph 55. This is not to say that a similar building in a different location, which would obviously have to be one which enabled advantage to be taken of the material energy sources, would be ruled out. Mr Bowden was properly exercising his judgment on the application which was before him.

Mr Bowden also considered that the proposed development did not conserve nor did it enhance the defining characteristics of what was an attractive rural area. Further, it failed to recognise the intrinsic character and beauty of the countryside.

Future generations will be adversely affected by developments which damage the countryside. Thus the energy credentials of a development will not by themselves justify the grant of planning permission. Equally sustainable development does not give a green light to greenfield developments without considering their effect on the countryside generally and nearby communities in particular.

For the reasons I have given, I am not persuaded that either of the inspectors’ decisions was erroneous in law. I recognise that I have not dealt in detail with every point made in the applicant’s written or oral arguments. Many were irrelevant. Equally, I have not found it necessary to refer to any authorities since this case turns on whether in the circumstances the particular inspector’s decision was one he was entitled to reach in the exercise of his planning judgment. I have no doubt that each was. Accordingly, the s.288 applications are dismissed.

That leaves the judicial review of Mr Bowden’s decision that the applicant should pay some of the council’s costs. He decided that a partial award was justified because the quantity of material lodged by the applicant was unreasonable. Having regard to what has been put before me, I have no doubt that that conclusion was proper. Leave was not granted to argue the contrary.

What led to permission to pursue a claim for judicial review was Mr Bowden’s order that the applicant should pay the council’s costs “so far as they related to the quantity of material submitted”. Mr Howell, Q.C. in granting limited permission said:-

The respondent has accepted that the Order cannot stand and that it is necessary to give more details. It follows that the order will be quashed only to the extent set out in the grant of permission. I have asked the parties to seek to produce an indication of what should be set out in the order.