Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government & Anor

J U D G M E N T

Background

"133. Paragraph 47 of the NPPF requires local planning authorities to identify and update annually a supply of specific deliverable sites to provide five years worth of housing against their housing requirements. The Council has a supply of only 4.08 years of housing land in the Borough. Paragraph 49 states that relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

134. LP policy HO3 is a policy for the supply of housing and must be regarded to be out of date. However, the proposed development has been assessed against this policy and has been found to accord with it. The development would supply much needed housing and affordable housing over the next five years and beyond. The proposed development would cause only negligible harm, to the character of the area, and has also been assessed against relevant elements of CS policy CS3 and CS10, and has been found to accord with these policies also.

135. The proposed development accords with the development plan. Paragraph 14 of the NPPF states that '…there is a presumption in favour of sustainable development which should be seen as a golden thread running through both plan-making and decision-taking…For decision-taking this means approving development proposals that accord with the development plan without delay'. Planning permission for the proposed development should be granted without delay."

"21. The main issues were set out at the Inquiry as being:

1. Whether the appeal land is part of a designated green wedge and is therefore subject to planning policy that seeks to protect such areas;

2. Whether the proposed development would undermine the separation of Ingleby Barwick and Thornaby;

3. The effect of the proposed development on the character of the area, biodiversity and the quality of the urban environment."

"10.The Secretary of State has given careful consideration to the Inspector’s analysis at IR103 – 112. He agrees with the Inspector that it would be illogical for green wedge areas to exist on a Proposals Map if these areas are no longer the subject of the development plan policy to which they relate and that, when LP policy EN14 disappeared so too, metaphorically, did the green wedge notations on the LP Proposals Map (IR105). Like the Inspector (IR110), he is of the opinion that the view of the Council and local residents that the appeal land is within a green wedge is not supported by the CS’s Strategic Diagram (IR110). The Secretary of State concludes that, notwithstanding the shared view of the previous Inspector and the Secretary of State in respect of Appeal Reference APP/H0738/A/13/2192538, upon the close scrutiny afforded by the inquiry into this appeal, it is evident that there is no development plan support for a conclusion that the appeal land is within a designated green wedge (IR112).

The separation of Ingleby Barwick and Thornaby

11.The Secretary of State has given very careful consideration to the Inspector’s reasoning at IR113 – 116. The Secretary of State does not share the Inspector’s view (IR116) that the gap that there would be between the proposed development and Teeside Industrial Estate would not undermine the strategic objective, as shown in the CS Strategic Diagram, of providing and maintaining a green wedge in this location. Nor does he concur with the Inspector that, even had the appeal land been in a designated green wedge, the development would leave sufficient green wedge to adequately maintain the separation between Ingleby Barwick and Thornaby (IR117). Whilst the Secretary of State has concluded that the site is not within a green wedge as designated by the relevant development plan, he has taken account of CS Strategic Objective 8 as well as the position of the Council (IR45) which makes clear that it regards the site as lying within a long established green wedge, and the fact that the Council is expected to adopt a Regeneration and Environment Development Plan Document (IR111) in due course. Having also taken account of his decision to allow appeal reference APP/H0738/A/13/2192538 which impacts on the gap between the conurbations of Ingleby Barwick and Thornaby, the Secretary of State agrees with Councillor Rose that development of the appeal site would be 'a bridge too far' (IR75) and he concludes that, were the appeal development to go ahead, the objective of providing and maintaining an adequate green wedge in this location would be undermined. In these circumstances, he considers that the appeal scheme conflicts with CS policy CS10(3) and the strategic objective of providing and maintaining a green wedge between the conurbations of Ingleby Barwick and Thornaby.

The character of the area, biodiversity and the urban environment

12.The Secretary of State agrees with the Inspector that the appeal scheme’s proposed buffer zone would provide opportunities for the enhancement of the amenity value of the secondary corridor and would assist the Council in meeting the strategic objectives of their Green Infrastructure Strategy, and that there is no justification for the buffer zone to be 20 metres wide (IR121). Having taken account of the Inspector’s remarks at IR122-123, the Secretary of State agrees with him that the openness of the appeal land would be lost as a result of the proposed development. In view of the size of the site, which is currently undeveloped land (IR11), and the extent to which it would be built upon he does not share the Inspector’s view that this loss would have only a negligible impact on the character of the area. In his opinion, the proposed development of the appeal site would have a material impact on the character of the area. Having had regard to the Inspector’s remarks (IR124), he too is satisfied that the biodiversity value of the proposed development would be, at least, no less than the biodiversity value of the appeal land as it is at present and that the scheme does not give rise to conflict with policy CS10(4). The Secretary of State also sees no reason to disagree with the Inspector’s remarks at IR125 and he agrees that the scheme does not conflict with CS policy CS3(8). Turning to the Inspector’s remarks at IR126, the Secretary of State agrees that the scheme lies within the limits of development of Ingleby Barwick and that it would remain available for recreational use, albeit restricted. However, as set out above, he considers that the proposed development of this undeveloped open land would have a material impact on the character of the area. Whilst he acknowledges the Inspector’s view that the site is bounded on two of its three main sides by existing development (IR126), he does not consider that this renders the proposed change insignificant.

13.In conclusion, the Secretary of State finds that the proposed development of the appeal land would have a materially harmful effect on the character of the area and that this brings it into conflict with CS policy CS10(3) and LP policy HO3. However, like the Inspector, he does not consider that the scheme would conflict with CS policy CS3(8) and CS10(4) (IR127)."

"16.The Secretary of State has taken account of the Inspector’s overall conclusions at IR133 – 135. He agrees with the Inspector’s remarks at IR133 and, like the Inspector (IR134), the Secretary of State considers that LP policy HO3 must be regarded as out of date. Unlike the Inspector, the Secretary of State has found conflict between the appeal scheme and this policy, albeit he attributes limited weight to this matter given his view that this policy should not be considered up-to-date. The Secretary of State has also concluded that the scheme conflicts with CS Policy CS10(3) and he gives substantial weight to this conflict.

17.The Secretary of State has had regard to the scheme’s benefits which include up to 550 dwellings including up to 83 affordable dwellings. Whilst he considers the housing to be a significant benefit in this case, especially given the absence of a 5 year supply of deliverable sites for housing in the Borough, the Secretary of State has also taken account of the submission of the Council (IR50) about the likely build time for the scheme and the uncertainty as to the number of dwellings which would be built in the initial five year period. The Secretary of State considers that this somewhat reduces the benefit of the scheme’s contribution to meeting the 5 year housing land supply.

18.The Secretary of State considers that the conflict with CS policy CS10(3) and the strategic objective of providing and maintaining a green wedge between Ingleby Barwick and Thornaby renders the scheme in conflict with the development plan overall. He has gone on to consider whether there are any material considerations which mean that he should determine the appeal other than in accordance with the development plan. Given his conclusion that relevant development plan policies are out-of-date in this case, the Secretary of State has considered whether permission should be granted under the second bullet point of the decision-taking section of paragraph 14 of the Framework. However, in his view, the conflict with CS Policy 10(3) and his conclusion that the scheme would not maintain the separation between Ingleby Barwick and Thornaby and the quality of the urban environment is an adverse impact which significantly and demonstrably outweighs the scheme’s benefits when assessed against the policies in the Framework taken as a whole." Please take in paragraph 16 to 18 inclusive."

The first defendant dismissed the appeal.

"I asked the Secretary of State to look at this appeal personally because I knew that was our best chance. He listened to local concerns and has taken a decision on sound planning grounds."

The claimant’s solicitor sought disclosure of the relevant documents. Disclosure was eventually given. That revealed an e-mail on 7th October 2014 to the Private Secretary of the Minister of State for Housing and Planning from the planning casework division in the following terms:

"I attach a submission (in cover sheet style), Inspector's Report and Costs Report. This relates to an appeal seeking planning permission for 550 dwellings on a site in the borough of Stockton-on-Tees. The Inspector recommends allowing the appeal. We agree with this recommendation. The case appears straight-forward and the Minister may be willing to decide it on the basis of the papers."

"The core strategy was adopted in 2010 and there are no emerging plans of relevance (including neighbourhood plans)."

"Further to the discussion at the planning casework meeting, the Minister has considered this case but disagrees with your recommendation. The Minister is minded to dismiss the appeal and refuse permission. The Minister did, however, ask whether it would be possible to refer back to parties and in particular the Council on a green wedge argument that they have put forward."

On 13th January 2015 the planning case work division responded but there was no basis for referring the case back to the parties. The e-mail continued:

"The refusal letter states that the fact that the appeal scheme would reduce the gap between the conurbations of Ingleby Barwick and Thornaby conflicts with one of the Core Strategies's strategic objective/policies. The letter goes on to say that there is no 5 year housing supply in this case, so under the Framework policies for the supply of housing are not considered to be up-to-date and the presumption in favour of sustainable development applies. The letter takes the view that the scheme's failure to maintain the separation of Ingleby Barwick and Thornaby and the quality of the urban environment amounts to an adverse impact which significantly and demonstrably outweighs the scheme benefits (namely housing and affordable housing).

Whilst we have drafted the decision letter as robustly as we can, please note that our view is that it is almost inevitable that the appellant will challenge this decision. If that happens Planning Casework does not consider it likely that CLG would be able to successfully defend the decision letter in the Courts."

Grounds of Challenge

The Legal Framework

"288 Proceedings for questioning the validity of other orders, decisions and directions

(1)If any person—

(a)is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i)that the order is not within the powers of this Act, or

(ii)that any of the relevant requirements have not been complied with in relation to that order; or .

(b)is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i)that the action is not within the powers of this Act, or

(ii)that any of the relevant requirements have not been complied with in relation to that action, .

he may make an application to the High Court under this section."

By section 288(5) the court may:

"(b)if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

"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."

In City of Edinburgh Council v Secretary of State for Scotland[1997] 1 WLR 1447, Lord Clyde (with whom the remainder of their Lordships agreed) dealt with the approach to be adopted to section 18A of the Town and Country Planning (Scotland Act) 1972 (to which section 38(6) of the Planning Compulsory Purchase Act is the English equivalent). At reference 1459D-E:

"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it."

"In the light of that decision I regard as untenable the proposition that if there is a breach of any one policy in a development plan a proposed development cannot be said to be 'in accordance with the plan'. Given the numerous conflicting interests that development plans seek to reconcile: the needs for more housing, more employment, more leisure and recreational facilities, for improved transport facilities, the protection of listed buildings and attractive land escapes et cetera, it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan. Numerous applications would have to be referred to the Secretary of State as departures from the development plan because one or a few minor policies were infringed, even though the proposal was in accordance with the overall thrust of development plan policies."

"18. In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as 'a proper interpretation' of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a 'proper interpretation' of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.

20. The principal authority referred to in relation to this matter was the judgment of Brooke LJ in R v Derbyshire County Council, Ex p Woods [1997] JPL 958 at 967. Properly understood, however, what was said there is not inconsistent with the approach which I have described. In the passage in question, Brooke LJ stated:

'If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy.'

By way of illustration, Brooke LJ referred to the earlier case of Northavon DC v Secretary of State for the Environment [1993] JPL 761, which concerned a policy applicable to 'institutions standing in extensive grounds'. As was observed, the words spoke for themselves, but their application to particular factual situations would often be a matter of judgment for the planning authority. That exercise of judgment would only be susceptible to review in the event that it was unreasonable. The latter case might be contrasted with the case of R (Heath and Hampstead Society) v Camden LBC [2008] 2 P & CR 233, where a planning authority's decision that a replacement dwelling was not 'materially larger' than its predecessor, within the meaning of a policy, was vitiated by its failure to understand the policy correctly: read in its context, the phrase 'materially larger' referred to the size of the new building compared with its predecessor, rather than requiring a broader comparison of their relative impact, as the planning authority had supposed. Similarly in City of Edinburgh Council v Scottish Ministers 2001 SC 957 the reporter's decision that a licensed restaurant constituted 'similar licensed premises' to a public house, within the meaning of a policy, was vitiated by her misunderstanding of the policy: the context was one in which a distinction was drawn between public houses, wine bars and the like, on the one hand, and restaurants, on the other."

"16. Leaving aside the effect of the saving direction, it seems to me, in the light of the statutory provisions and the guidance, that when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy. I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text. That applies even where, as here, the local plan states that the supporting text indicates how the polices will be implemented."

"That reasoning can, in my view, be applied across to the relationship between Local Plan policies and the Proposals Map with which the present case is concerned. The Proposals Map is not itself policy, but it illustrates detailed policies, to use the term in section 36(6)(a) of the 1990 act. In particular, it identifies the geographical areas to which the detailed policies apply. Just as the supporting text is relevant to the interpretation of a policy, so the Proposals Map is relevant to the geographical scope of application of a policy and thus to a proper understanding of the policy. One looks at the supporting text and the Proposals Map not because they are themselves policy -- they are not -- but because of their relevance to a proper understanding of the policies properly so-called."

"... no legal or practical requirement for planning decision-makers specifically to determine whether a development proposal is or is not in accordance with the development plan."

He said:

"I respectfully disagree with a proposition formulated in those terms. It will be clear from what I have said above that in my view compliance with the duty under section 38(6) does as a general rule require decision-makers to decide whether a proposed development is or is not in accordance with the development plan, since without reaching a decision on that issue they are not in a position to give the development plan what Lord Clyde described as its statutory priority. To use the language of Lord Reed in Tesco Stores v Dundee City Council (see paragraph 29 above), they need to understand the nature and extent of any departure from the development plan in order to consider on a proper basis whether such a departure is justified by other material considerations."

Those principles have recently been applied by the High Court in BDW Trading Ltd v Secretary of State for Communities and Local Government[2015] EWHC 886 (Admin). Hickinbottom J said at 33:

"iii) However, as Mr Kimblin properly concedes, it was necessary for the Inspector, having found the development to have been in conflict with one policy within the development plan, to proceed to determine whether the development was or was not in accordance with the plan as a whole.

iv) I accept Mr Kimblin's forceful submission that whether the Inspector considered and determined that the development was or was not in accordance with the plan as a whole is a question of substance and not form. The use of a mantra in an inspector's decision is not necessary; and, if an inspector uses such a mantra, that may not necessarily be sufficient. However, if an inspector fails to indicate expressly that he has at least considered that issue, it may be more difficult for a court to find that he has done so. Where an inspector has identified conflicts between a development and the plan, if he sets out his reasoning, brief as it might be, as to why he considers that the development is not in accordance with the development plan or, despite conflicts with individual policies, that it is, that will be helpful not only to those involved in the application but also to the court in any later challenge. Such express reasoning will usually make clear that the inspector has brought his mind to bear upon the relevant issue and has drawn a rational conclusion."

Ground 1

Whether the first defendant erred in his application of section 38(6) of Planning Compulsory Purchase Act 2004.

"16. Saved LP policy HO3 relates to housing development on unallocated sites and states that within the limits of development residential development may be permitted provided that, amongst other things, the land is not specifically allocated for another use, it does not result in the loss of a site which is used for recreational purposes, and it is sympathetic to the character of the locality and takes account of and accommodates important features within the site. The LP Proposals Map indicates that land to the west of Thornaby Road and to the north of Low Lane, including the appeal land, is within the limits of development.

17. The LP originally included policy EN14, which related to green wedge areas, but this policy was replaced on the adoption of the CS, by CS policies CS1 and CS10 (page 74 of CD2). CS policy CS10(3) refers to green wedges and states that the separation between settlements together with the quality of the urban environment will be maintained through the protection and enhancement of the openness and amenity of, amongst other things, green wedges within the conurbation including the Bassleton Beck Valley between Ingleby Barwick and Thornaby. The CS includes a Strategic Diagram (ID25) which indicates the location of green wedges.

18. CS policy CS3(8) states that, in designing new development, proposals will, amongst other things, make a positive contribution to the local area, by protecting and enhancing important environmental assets and biodiversity, by responding positively to existing features of natural character such as hedges and trees, and by including the provision of high quality public open space. CS policy CS10(4) states that the integrity of designated sites will be protected and enhanced and that the biodiversity and geodiversity of sites of local interest will be improved."

In the inspector's overall conclusions, set out above, he found that the development proposed accorded with the development plan. In paragraph 16 of his Decision Letter the first defendant agreed with the inspector that local plan policy H03 was out of date. Although there was conflict with that policy he gave little weight to it because the policy was out of date.

Discussion and Conclusions

Ground 2 : Whether the first defendant reached an unlawful conclusion that the development conflicted with CS10(3) and strategic objective of providing and maintaining a green wedge between the conurbations of Ingleby Barwick and Thornaby?

"The separation between settlements together with the quality of the urban environment will be maintained through the protection enhancement of the openness and amenity value of...

(ii) Green wedges in the conurbation including...

• Bassleton Beck Valley between Ingleby Barwick and Thornaby."

Discussion and Conclusions

"... so the Proposals Map is relevant to the geographical scope of application of a policy and thus to a proper understanding of the policy." (28).

"There is no development plan support for a conclusion that the appeal land is within a designated Green wedge"(10)

That is the starting point for consideration of where the policy applies. The second defendant accepted that the Green wedge was accurately drawn on the key diagram. It showed the broad location of CS10. Further, the second defendant accepted that the appeal site was not shown within the notation which related to the relevant Green wedge. The appeal site is shown marked "X" in a plan prepared for the Minister with which the second defendant did not disagree and which shows the site well outside the Green finger, as shown on the key diagram and in an area of white land. The second defendant submits that it does not apply the diagram as a development management tool. The interpretation of CS10(3)(ii) is a matter of fact and degree in each case and for interpretation by the decision maker.