Before :
His Honour Judge Bird sitting as a Judge of this Court
Between :
BELLWAY HOMES LIMITED | Claimant |
- and - | |
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) CHESHIRE EAST COUNCIL | Defendants |
Mr Paul G Tucker QC (instructed by Reynolds Porter Chamberlain) for the Claimant
Mr Richard Honey (instructed by the Government Legal Department) for the Secretary of State For Communities and Local Government
Hearing dates: 21 May 2015
Judgment Approved
His Honour Judge Bird :
On 5 September 2013, the Claimant, Bellway Homes Limited, submitted an application to the second Defendant for planning permission to build 104 homes and to carry out all necessary ancillary works at a site at Waggs Road in Congleton. The application was refused by notice dated 10 December 2013. The Claimant appealed to the Secretary of State under section 78 of the Town and Country Planning Act (“TCPA”). An inquiry was held between 14 and 17 October 2014. The Inspector was Olivia Spencer BA BSc Dip Arch RIBA. The Inspector’s decision, rejecting the appeal, was published on 15 December 2014. By proceedings issued on 22 January 2015 the Claimant seeks to challenge the outcome of the appeal under section 288 TCPA. There is a single ground of challenge, namely that the Inspector:
“…adopted a legally erroneous approach to the question of whether a condition precedent (a Grampian condition) could or ought to be imposed to secure the provision of off-site highway works”
The Claimant argues that the Inspector’s approach was wrong in law because it failed to follow national policy. National policy in respect of the imposition of conditions generally is set out at paragraphs 203 and 206 of the National Planning Policy Framework.
Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
….
Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.
Planning Practice Guidance (updated on 6 March 2014) on the use of conditions provides as follows:
Paragraph: 009 Reference ID: 21a-009-20140306
When can conditions be used relating to land not in control of the applicant?
Conditions requiring works on land that is not controlled by the applicant, or that requires the consent or authorisation of another person or body often fail the tests of reasonableness and enforceability. It may be possible to achieve a similar result using a condition worded in a negative form (a Grampian condition) – i.e. prohibiting development authorised by the planning permission or other aspects linked to the planning permission (e.g. occupation of premises) until a specified action has been taken (such as the provision of supporting infrastructure). Such conditions should not be used where there are no prospects at all of the action in question being performed within the time-limit imposed by the permission.
Where the land or specified action in question is within the control of the local authority determining the application (for example, as highway authority where supporting infrastructure is required) the authority should be able to present clear evidence that this test will be met before the condition is imposed.”
The factual context
Congleton lies 21 miles south of Manchester between the Peak District National Park and the M6 motorway. The site with which the appeal is concerned is approximately 1km from the town centre. Waggs Road and its continuation Fol Hollow join the A54 and A34 just south of the town centre, their width is, as the Inspector reports:
“restricted by existing buildings and steep banks to either side. Fol Hollow, which extends beyond the 30mph limit of the town, has the character of a country lane. Waggs Lane has housing to each side and gives access to a primary school…..”
The Inspector dealt with highway works in general at paragraphs 7 to 21 of the decision letter. The points made can be summarised as follows:
Pedestrian Traffic
Relying on evidence of present pedestrian traffic on the roads around the proposed development site and taking account of the fact that the proposed development is only 1 km from the town centre and its access point 356 metres from the Primary School, the Inspector proceeded on the agreed basis that occupants of the new development would frequently choose to walk to the town centre and to walk their children to the school.
She proceeded on the basis that some 150 additional walking trips per day would be generated by the development, the majority of those likely to be between the development and the town centre. The Inspector appreciated and took account of the fact that not all of the pedestrians would start their journey from the exact point of the access road.
The Inspector points out that the recommended minimum footway width, set out in the “Manual for Streets” (MfS) is 2m and notes the following:
The distance between the access road of the new development and the town centre is 925m. Only 128m of the footway to the north over that distance is equal to or greater than the recommended minimum.
The distance between the access road and the school is 356m. Only 18m of the footway over that distance is equal to or greater than the recommended minimum.
If pedestrians cannot pass each other on the footways then they will need to step out into the carriageway.
Here conclusion was that the proposed development would “thus give rise to a significant number of additional pedestrians using the substandard footways along Waggs Road.”
The Inspector notes:
“It is the case that existing residents use this route, and have done so to date without giving rise to recorded personal injuries. The increased number of daily walking trips would however result in a corresponding increase in the likelihood of pedestrians passing each other on the narrow footways, and at times stepping into the carriageway. The result would be an increased risk to the safety of pedestrians in Waggs Road”
Road Traffic
The access road to the development would lie in an existing 30 mph zone. It was agreed that for the purpose of applying MfS guidance, the relevant speed of traffic was 30mph. The proposed visibility splay at the access road would allow a driver waiting to exit the road a line of sight of 43m west of the junction along Waggs Road (described in MfS as the Y value) and of 35m or 30m east of the junction towards Fol Hollow, depending what point is taken. MfS provides a minimum “stopping sight distance” (“SSD”) of 40m.
It follows that the access road fails to meet the MfS minimum recommendation for the SSD or Y value as far as visibility to the east is concerned. All parties accepted that the minimum SSD or Y value was 43m.
The Inspector notes that falling below the minima of the MfS will not necessarily lead to a significant problem and refers to certain mitigation measures (widened footways on the south western approach to the school and to the restriction of traffic speeds on Waggs Road). She goes on to conclude, given the particular characteristics of the present site, in particular that the access road will emerge within sight of Fol Hollow, a road with an unrestricted speed limit, that there is
“no basis for concluding that a visibility splay below recommended levels would be appropriate”.
The mitigating factors include “speed humps and 2 stretches of footway build-out”. The Inspector notes that the proposed section 106 unilateral undertaking offered by the developer makes reference to certain Traffic Regulation Orders including 20mph speed restriction in the vicinity of the school and access only restrictions. She goes on to note that “there can be no certainty that measures requiring a TRO would be implemented”.
The Inspector goes on to note that the Council accepts that road humps on the approach to the access could “reduce speeds sufficiently”. The Inspector had available to her certain drawings of the scheme. She accepted that that scheme “could meet the terms of a Grampian condition prohibiting development until a scheme of works sufficient to reduce traffic speeds to provide a [safe] SSD at the access was in place”
The Inspector goes on to discuss and consider the potential Grampian condition. She makes the following points:
There has been no public consultation on the road hump proposals and the detailed design of the humps remains unspecified
The Council has no adopted policy on speed humps but “advises that similar proposals have been rejected as a result of objections from residents”. The Inspector accepts that she cannot second guess the outcome of any consultation on “a detailed version of the submitted scheme or indeed any alternative scheme”. In those circumstances the Inspector notes that she: “cannot be confident that a scheme of speed reduction provided by way of a Grampian Condition could or would, in this case take account also of potential effects on road users and local residents”. The conclusion then is, given the uncertainties identified by the Inspector, that “neither the submitted proposals nor a Grampian Condition can reasonably be relied on to overcome the adverse effects the proposed development would have on the safety of pedestrians and drivers in Waggs Road”
The Inspector’s conclusion is that the proposed development would have an adverse effect on highway safety in Waggs Road contrary to policies GR1 and GR9 of the Congleton Borough Local Plan First Review (2005) which seek to ensure that proper consideration is given to the needs of pedestrians and the provision of safe access to the public highway.
The Inspector refers also to the NPPF. She notes the following:
“…the Framework states that planning decisions should take account of whether safe and suitable access can be achieved and a safe and accessible environment created. Whilst town centre facilities, services and transport links would be nearby, access to these facilities by pedestrians would in the majority of cases be along the sub-standard footways of Waggs Road. The proposed road junction would fail to provide safe highway conditions. A package of works to the highway sufficient to appropriately limit these impacts cannot be assured and in their absence the detrimental effect of the development on the safety of highway users would I consider, be severe”
I have seen and considered the written closing submissions of Mr Anthony Crean QC who appeared at the Inquiry for the Local Planning Authority. The submissions are blunt.
Mr Crean avers that the developer’s case on highway safety was “shambolic” and that the success of the appeal stands or falls on the acceptability of the scheme under consideration, including the detailed access solution which is a part of it. Mr Crean submitted that the Y value to the east of the access road junction, even if taken at the longer 35m, some 8m short of the minimum of 43m, is a:
“very significant shortfall when it is remembered that the subject under consideration is the distance required by a moving vehicle to stop short of a collision”.
Mr Crean went on to deal with the TROs proposed in the section 106 agreement. He submitted that the real question was whether “measures to control traffic speeds ..... will ever see the light of day”.
As to speed bumps, Mr Crean reminded the Inspector that Mr Jones (the LPA’s Principal Development Officer (Highways)) rejected the point “…out of hand. He explained that the Cabinet (into whose exclusive jurisdiction the making of a TRO falls) have firmly decided not to impose any speed bumps for the sensible reason that local residents are strongly opposed because of inconvenience of continually navigating them. In the 6 years of [the Cabinet’s] existence there has never been a TRO published which includes round top humps. That gives the inspector a high degree of confidence that the design solution set out [by Mr Roberts, the developer’s engineer] will not be achieved”.
The “access restrictions” were described in evidence as unlikely to succeed on a two way road with open access at both ends, and the speed restrictions would only be imposed when the Highways Authority “has a high degree of confidence that the restriction will be enforceable and obeyed” and that Waggs Road and Fol Hollow were unsuitable candidates because of their gradient.
Mr Crean concluded that there was therefore no acceptable solution to the Highway safety issues.
Mr Tucker Q.C. who appeared for the developer identified in his closing submissions that the only real issue for the Inspector was whether the development was objectionable on grounds of highway safety. Mr Tucker made the following points:
Speed humps (which he appears to describe as “the dreaded speed humps”) do not require a TRO but do, as a matter of good practice require consultation.
Planning decisions must be taken on the assumption that other regulatory means of control will operate properly and lawfully. Mr Tucker then submitted that the Inquiry should proceed on the basis that the CEC “would not act in a capricious and unlawful manner and set its corporate face against a technically acceptable highway solution for purely political reasons. The only proper assumption is that CEC will when asked to exercise its discretion ….. will exercise its discretion lawfully and for a proper highway purpose”
The Written Submissions before me
Mr Tucker QC and Mr Carter who appear for the developer submitted a skeleton argument which reflects the content of the Particulars of Claim. The Claimant submits that the Inspector adopted the wrong test in rejecting the imposition of a Grampian condition. She should have asked herself (paragraph 23 of the skeleton and paragraph 22 of the Particulars of Claim) if there was “no prospect at all of the appropriate package of works being delivered if they were required by a Grampian Condition”. The question is taken from the PPG cited at paragraph 3 above. Mr Tucker reminds me that:
(see paragraph 18 of the decision) the Inspector concluded that she could not be confident of the delivery of a suitable scheme of works and
(see paragraph 32 of the decision) delivery of the requisite package of works could not be assured.
Mr Tucker then submits that the Inspector therefore failed to have regard to national policy as expressed in the PPG and the NPPF, or if she did have it mind, misunderstood it.
Before considering the submissions in response, paragraphs 18 and 32 of the decision letter should be revisited.
The content of paragraph 18 is dealt with at paragraphs 5(ix)(a) and (b) above, and at paragraph 22 of Mr Honey’s skeleton argument. As I read that paragraph it makes 5 points:
the speed hump proposal put forward by the developer has not reached the detailed design stage
no public consultation has been carried out in respect of it
whilst there is no adopted policy on speed humps, other similar proposals have been rejected following public consultation because residents have objected
the public view of the particular scheme advanced, or of any alternative scheme to be advanced by way of a Grampian condition, is not known
it follows that the Inspector could not be confident that a scheme of speed reduction would have local support following a consultation.
Paragraph 32 is set out at paragraph 5(xi) above.
The Secretary of State’s case was advanced by Mr Honey. He reminds me of the seven principles set out in the decision of Lindblom J in Bloor Homes East Midlands Limited v the Secretary of State and another [2014] EWHC 754 (Admin) set out at paragraph 19. To summarise:
a claim under section 288 is not a review of the merits of an Inspector’s decision. The assessment of facts and the weighing of considerations are matters for the Inspector alone and the Court has no power to intervene.
Matters of planning judgment are for the Inspector.
The decision letter should not be read with too critical an eye. The reasons expressed in the letter for a decision must not give rise to any substantial doubt as to whether the decision maker erred in law, but an inference that error in law has been made will not lightly be drawn.
At paragraph 23 of his skeleton Mr Honey analyses paragraph 18 of the decision letter. He there submits that the Inspector reached the conclusion that no package of works (either proposed or to be formulated) could reasonably be expected to overcome the highway safety issues she had identified and that she was fully entitled to reach that conclusion because there was no detailed scheme and no way of second guessing the outcome of a consultation exercise. This, he submits, is quintessentially a matter of planning judgment and there is no question of a misdirected approach.
Mr Honey then submits (paragraph 27) that Mr Tucker’s position is misconceived. He says that the PPG deals with the circumstances in which a Grampian condition should not be imposed. It says nothing about the circumstances in which such a condition might be imposed. Mr Honey relies on the decision of Stewart J in FCC Environment v SSCLG [2014] EWHC 2035 at paragraphs 16 to 18.
The Oral Submissions
The argument advanced by Mr Tucker Q.C. at the hearing was not quite the argument advanced by him in writing either in the skeleton argument or in the Particulars of Claim.
He took me to comments on the case of British Railways Board v Secretary of State for the Environment published at [1994] JPL 32. Lord Keith, said this:
“The owner of the land to which the application relates may object to the grant of planning permission for reasons which may or not be sound on planning grounds. If his reasons are sound on planning grounds no doubt the application will be refused. But if they are unsound, the mere fact that the owner objects and is unwilling that the development should go ahead cannot in itself necessarily lead to a refusal. The function of the planning authority is to decide whether or not the proposed development is desirable in the public interest. The answer to that question is not to be affected by the consideration that the owner of the land is determined not to allow the development so that permission for it, if granted, would not have reasonable prospects of being implemented. That does not mean that the planning authority, if it decides that the proposed development is in the public interest, is absolutely disentitled from taking into account the improbability of permission for it, if granted, being implemented. For example, if there were a competition between two alternative sites for a desirable development, difficulties of bringing about implementation on one site which were not present in relation to the other might very properly lead to the refusal of planning permission for the site affected by the difficulties and the grant of it for the other. But there is no absolute rule that the existence of difficulties, even if apparently insuperable, must necessarily lead to refusal of planning permission for a desirable development. A would be developer may be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considers that it is in his interests to secure planning permission notwithstanding the existence of such difficulties, it is not for the planning authority to refuse it simply on their view of how serious the difficulties are.”
He referred to paragraphs 16 and 17 of Stewart J’s decision in the FCC Environment decision. The case concerned an application under section 288 to quash the refusal of the Inspector to overturn the refusal of planning permission to erect and operate a wind turbine in West Yorkshire. The principal objector was the Ministry of Defence. It was concerned that the wind turbine, if built, would interfere with the operation of the Air Defence Radar Service at Staxton Wold which lay only 33.1 Km from the site of proposed development. Before the Inspector, the developer proposed certain mitigating measures. The Inspector concluded that the developer had not demonstrated that the mitigation proposed could be successfully applied and so:
“there is nothing before me to demonstrate that a solution to ensure that the effects on the Radar would be adequately mitigated would become available within the time limit for implementation”.
The Inspector therefore found that the imposition of a Grampian condition would not offer an acceptable solution.
Before Stewart J the developer argued that the Inspector had failed to give proper reasons for not imposing a Grampian condition. The argument (the same as that initially advanced by Mr Tucker) was that unless it can be said that there are no prospects at all of satisfactory mitigation becoming available during the lifetime of the permission, then permission should be given subject to the imposition of a Grampian condition. The argument was rejected. Stewart J concluded that the decision maker has a discretion to impose a Grampian condition, save that, if he was minded to impose such a condition, he should not so if there were no prospects at all of it being fulfilled in the relevant time. This was, the Judge noted “subject to the proviso that he should not merely follow the policy but also give sound planning reasons if that was his only reason”.
Stewart J found that the Inspector’s approach could not be criticised. He came to the decision not to grant permission with a Grampian condition as a matter of planning judgment on all the evidence. The absence of site specific mitigation proposals was not the sole reason for refusal.
Mr Tucker also relied on Merritt v Secretary of State [2000] PLR 125 (QB) a decision of Robin Purchas QC sitting as a Deputy Judge. There the Court was dealing with paragraph 40 of circular 11/95. That policy had been amended before Stewart J’s decision in the FCC case. The Secretary of State’s then policy was set out in this way:
“it is the policy of the Secretary of State that [a Grampian] condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed before the time limit imposed by the permission”.
It was held that the rejection of a Grampian condition, simply on the grounds that the Inspector was not convinced that there was a reasonable prospect that the required improvements would be made, was unlawful. It is clear that the then Deputy Judge had some sympathy with the Inspector. He said this:
“this Inspector simply applied the policy as a mandatory requirement without scope for discretion on his power. Given its term, that is not altogether surprising”
Reference is made to a decision of His Honour Judge Rich QC sitting as a Deputy Judge of the High Court in the case of Millington v The Secretary of State (1999) 1 PLR 36 at 48G. His Honour Judge Rich QC notes that the BRB case (referred to in a footnote to the 11/95 circular):
“leaves it open to the Secretary of State to refuse to impose such a condition if there are reasons other than the unlikelihood of implementation. But the unlikelihood of implementation is not by itself a sufficient reasons to refuse……”
The Merritt case led to the alteration of policy set out at paragraph 40 of circular 11/95. The alteration was first brought about by a letter from the ODPM and then by the PPG referred to at paragraph 3 above.
Mr Tucker submits, from the firm foundation set down by these authorities, that a decision not to impose a Grampian condition, simply on the basis that the condition is unlikely to be fulfilled during the lifetime of the relevant consent, is wrong in law. Whilst there is a general discretion to refuse to impose a Grampian condition, that discretion must be exercised with regard to sound planning reasons.
Applying those submissions to the facts of the present case Mr Tucker, by reference to paragraphs 17, 18 and 32 of the decision letter submitted that the Inspector had simply relied on the uncertainty of the Grampian condition being fulfilled and had failed to give any planning reasons for her conclusion. Thus, he says, she misapplied the law and the decision must be quashed. He further submits that it is in any event clear (see paragraph 5(viii) above) that the Inspector was satisfied that an effective mitigation scheme could be devised.
Mr Honey submitted that the Claimant’s case had metamorphosed into a reasons challenge and reminded me of the care I should take in approaching such a challenge. He restated the Secretary of State’s position (set out in his skeleton argument at paragraph 29) that the authorities established that the Inspector had a discretion to grant planning permission with a Grampian condition or to refuse it. He noted that Merrittwas a case in which the policy had been followed without any thought being given to that discretion. He reminded me that in FCC the Inspector had had no site specific mitigation proposals.
Mr Honey submitted, bearing in mind the correct approach to applications under section 288 and the need to read the decision as a whole and in good faith, that the Inspector, after a 4 day hearing, a site visit and the benefit of submissions from Leading Counsel on both sides, had the following points clearly in mind:
The proposed scheme of mitigating works was potentially controversial and, if implemented, would affect road users and local residents.
That closing submissions after the Inquiry invited the Inspector to consider the likelihood of the scheme “seeing the light of day” (Mr Crean at paragraph 11) and to ask of the scheme was “achievable” (Mr Tucker at paragraph 5.2.5).
Mr Tucker accepted before the Inquiry that the developer was under a duty to “satisfy the Inquiry that a technical solution can be arrived at which will have the effect of reducing vehicle speeds” (paragraph 5.2.11)
That the decision letter at paragraph 18 addresses the problems that the mitigating works would face and not just the probability of the mitigating works being completed.
Discussion
In the final analysis there was little if any dispute between the parties on the law. The real question for me is this: did the Inspector reject the Grampian Condition simply because she felt it was not capable of fulfilment?
The developer did not advance in oral submission a case that the Inspector had not had the PPG in mind. It seems to me that it is in any event almost unthinkable that she, as an expert tribunal, would not have had the PPG in mind.
A decision maker, taking account of the PPG, might well start by deciding if it is possible to fulfil the proposed condition. It seems to me it does not matter if the question is asked at the beginning of the decision making process or at the end of it. The important point is that the decision must be made.
A fair reading of paragraph 17 of the decision letter in my judgment shows that the Inspector accepted that it was possible to design and put in place a mitigating scheme of speed reduction works. I read the paragraph as the Inspector’s decision on this fundamental PPG point.
Once it is established that the condition is one that might possibly be fulfilled the Inspector, in my judgment, goes on to deal with the discretion she clearly has. She takes account of a number of factors:
At paragraph 18, she noted that the detail of the proposed scheme was not certain. The scheme put to the Inspector had not gone out to even an informal consultation and the potential impacts on the users of the highway was not known.
The Inspector took a balanced view of considerations, noting at paragraph 19 that the effects of the proposal on congestion would be neutral and at paragraph 20 that the development would not result in an increased risk to users of Fol Hollow.
At paragraph 21 of the decision letter, the final paragraph before the Inspector turns to the 5 year housing land supply issue, she comes to a conclusion, which is expressed to be reached “for the reasons given above”. The conclusion makes specific reference to the Local Plan first review. In exercising her discretion it seems to me to be clear that the Inspector took into account “the needs of pedestrians and the provision of safe access to the public highway”. These are quintessentially “planning reasons”.
At paragraph 32 the Inspector refers back to the harm she has identified in respect of highway safety and makes specific reference to the NPPF. She notes that the detrimental effect on highway safety the development would bring would be in direct conflict with “the objective of the social role of the planning system to support the well-being of the community”. These words clearly echo paragraph 7 of the NPPF, recognising the social dimension is one of the 3 dimensions to sustainable development.
Seen properly in context I am satisfied that the Inspector’s references to the absence of probability that the works would be completed does not establish that she made any error in approaching her decision. Whilst the Inspector did not make specific reference to it, it seems to me that she almost certainly had in mind the need for all planning conditions to be enforceable, precise and reasonable in coming to her conclusion.
Conclusion
I am satisfied that the Inspector’s decision should stand.
The Application will be dismissed.
This is a reserved judgment. I would urge the parties to agree an order. If an order cannot be agreed I would be minded to decide any issues that arise on paper. If the parties feel that the resolution of those issues requires oral argument I would be minded to dismiss the application and adjourn the consideration of all ancillary matters when I hand down judgment.
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