Muller Property Group v Secretary of State for Communities And Local Government

This is an application for leave to apply under s 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash a decision letter of the Defendant Secretary of State of 11^th August 2016, whereby he dismissed the Claimant’s two appeals (referred to as “appeal A” and “appeal B”) against the refusal of planning permission for residential and employment development, together with related development, on land at Audlem Road/Broad Road, Stapeley, Nantwich, Cheshire. Site B adjoins Site A, and was to provide the access to the development on Site A.

It came before me as an oral application to renew, Kerr J having refused permission to apply on the papers on 8^th November 2016.

I shall deal with matters as follows

a)

Procedural history

b)

Relevant passages in the National Planning Policy Framework “NPPF”

c)

The Inspector’s Report of March 2014

d)

The Decision Letter of August 2016

e)

The Grounds of Challenge

(a ) Procedural History

The appeals have a substantial history, having been entered originally in May 2013. It was a case where the Defendant recovered jurisdiction, albeit not until 5^th March 2014, after the end of the public inquiry. A public inquiry was held in February 2014 over 4 days, together with a subsequent one day round table discussion, also in February 2014. and the Inspector issued his report in June 2014. He recommended that both appeals be allowed. However no decision letter was received from the Defendant until 17^th March 2015. In that decision, the appeals were dismissed. He did so on the basis that it would be wrong to grant permission in advance of decisions being made in the Development Plan process.

Unhappily, the Defendant reached those decisions without addressing or applying his own policy on arguments of prematurity. It also contained an error about the amount of best and most versatile agricultural land within the appeal site.. The Claimant challenged those decisions in this court. The Defendant submitted to judgement, and a consent order was made on 3^rd July 2015 before Hickinbottom J. The schedule to the order recited the flaws in the decision letter.

The Defendant then decided to invite further representations under Rule 19 of the Town and Country Planning (Inquiries Procedure) Rules 2000. He did so by letter of 17^th July 2015. Having received them, he stated on 15^th September 2015 that he did not need to reopen the inquiry, and would proceed to issue his decision on or before 17^th November 2015. However he failed to do so, and did not issue his decision letter until 11^th August 2016, almost 9 months later than the date he had identified.

It is, to say the least, highly regrettable that at the date of the decision letter, over three years had elapsed since the appeals were made, over two years since the Inspector reported, and 10 months after the Defendant’s proposed date for issuing the new decision letter. That however, while regrettable, does not in this case give grounds for quashing the decision.

(b ) Relevant passages in NPPF

It is necessary to start consideration of the Inspector’s Report and subsequent Decision Letter by saying something of NPPF. It is national policy, published by the Defendant’s predecessor in March 2012. I shall presently set out important qualifications to be had in mind when assessing its relevance. This case has featured approaches to it which require comment.

It includes the following passages

"6.

The purpose of the planning system is to contribute to the achievement of sustainable development. The policies in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system.

7.

There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:

•     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 innovation; and by identifying and coordinating development 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."

Achieving sustainable development |

8.

These roles should not be undertaken in isolation, because they are mutually dependent. Economic growth can secure higher social and environmental standards, and well-designed buildings and places can improve the lives of people and communities. Therefore, to achieve sustainable development, economic, social and environmental gains should be sought jointly and simultaneously through the planning system. The planning system should play an active role in guiding development to sustainable solutions.

"The presumption in favour of sustainable development

11.

Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.

12.

This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.

13 ……

14.

At the heart of the National Planning Policy Framework 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 plan-making this means that:

•     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:

– any adverse impacts of doing so would significantly and demonstrably

outweigh the benefits, when assessed against the policies in this

Framework taken as a whole; or

– specific policies in this Framework indicate development should be

restricted." (A footnote (9) gives as examples policies relating to Habitat Directives, designated Sites of Special Scientific Interest, designated Green Belts, Areas of Outstanding Natural Beauty, Heritage Coasts, National Parks, designated heritage assets or areas at risk of flooding or coastal erosion)

For decision-taking this means": ("unless material considerations indicate otherwise" appears in a footnote)

"•     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:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted. (Reference is again made to footnote (9))

15.

Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally."

 Chapter 6 deals with "Delivering a wide choice of high quality homes." The following paragraphs are relevant:

"6.

Delivering a wide choice of high quality homes

47.

To boost significantly the supply of housing, local planning authorities should:

•

use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

•

identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land (a footnote adds "To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans"

•

identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15 (a footnote adds "To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available and could be viably developed at the point envisaged."

•

for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and

•

set out their own approach to housing density to reflect local circumstances.

48 …….

49 Housing applications should be considered in the context of the presumption in favour of sustainable development. 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.

50.

To deliver a wide choice of high quality homes, widen opportunities for home ownership and create sustainable, inclusive and mixed communities, local planning authorities should:

•

plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes);

•

identify the size, type, tenure and range of housing that is required in particular locations, reflecting local demand; and

•

where they have identified that affordable housing is needed, set policies for meeting this need on site, unless off-site provision or a financial contribution of broadly equivalent value can be robustly justified (for example to improve or make more effective use of the existing housing stock) and the agreed approach contributes to the objective of creating mixed and balanced communities. Such policies should be sufficiently flexible to take account of changing market conditions over time."

The interpretation of those passages, and in particular paragraph 14, has been before the Courts on a number of occasions. In March 2016 the Court of Appeal handed down judgement in Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168 [2016] 2 P & CR 1 [2016] JPL 890. One topic addressed by the Court in the judgment of Lindblom LJ was the status of NPPF. He issued some salutary reminders that the status of NPPF was that it was a policy, no more and no less (see [42]-[48]). It was relevant as a material consideration for the purposes of s 70(2) TCPA 1990, but the principle remained under s 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) that applications have to be determined in accordance with the Development Plan unless material considerations indicate otherwise.

In an earlier case at first instance Lindblom J, as he then was, had provided authoritative guidance on the interpretation of the words “ up to date” as they appear in NPPF at paragraphs 14 and 49: see Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [42]-[63].

As with all policy, the duty of the decision maker is to have regard to it as a material consideration. While the Court is able to interfere if the policy has been misinterpreted, its application is for the decision maker: for the most recent succinct exposition of that principle, see Holgate J in Barker Mill Estates (Trustees of) v Test Valley Borough Council & Anor [2016] EWHC 3028 at [22]:

“Part of the Claimants challenge suggests that the NPPF has been misinterpreted. In Tesco Stores Limited v Dundee City Council [2012] PTSR 983 the Supreme Court held that the construction, or interpretation, of a planning policy is a question of law for the Court to determine objectively in accordance with the language used (paragraph 18). However, the Court went on to state that development plans and other policy documents are not analogous in their nature or purpose to a statute or contract and should not be construed as if they were. Moreover, many policies are framed in language the application of which to a given set of facts requires the exercise of judgment. Matters of that kind fall within the jurisdiction of planning authorities as decision-makers and their exercise of judgment can only be challenged in the Courts if it is irrational or perverse (paragraph 19). Therefore, in a case where the decision-maker has had regard to a policy which he was required to take into account, it is essential for practitioners to keep in mind the distinction between interpretation and application of policy and the very different functions of the court in each area.”

Indeed, the decision maker is not bound to apply a policy provided he gives reasons for not doing so: see Nolan LJ in Horsham District Council v Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment [1987] 54 P & CR 86 and see Lindblom J in Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin), [2011] JPL 887 at [50].

If he chooses to do so, the decision maker can have regard to the policy but then give it no weight. For that proposition, I would refer to the speech of Lord Hoffman in Tesco v Secretary of State for the Environment [1995] UKHL 22, [1995] 1 WLR 759, (1995) 70 P & CR 184, 93 LGR 403, [1995] 2 PLR 72, [1995] 2 All ER 636 at [68]:

“Finally I should notice a subsidiary argument of Mr. Vandermeer. He submitted that a material consideration must be given some weight, even if it was very little. It was therefore wrong for the Secretary of State, if he did accept that the offer was a material consideration, to say that he would give it no weight at all. I think that a distinction between very little weight and no weight at all is a piece of scholasticism which would do the law no credit. If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it”

For the avoidance of doubt, I do not accept that one needs to approach paragraph [14] of NPPF on the basis that it may permit the exercise of a residual discretion, as canvassed in the first instance decision in East Staffordshire BC v SSCLG [2016] EWHC 2973. It is unnecessary to resort to such a concept. The decision maker must interpret it properly, but that is a different issue from its application. The decision maker always has the ability not to apply a policy, or to apply or not to apply it in a particular way, subject to his doing so rationally, and provided that he gives reasons for departure. There is no need to add a gloss to that long established legal principle. Unhappily the judge in that case does not appear to have had Suffolk Coastal put before him. I respectfully adopt Holgate J’s criticism of the concept in Barker Mill Estates (Trustees of) v Test Valley Borough Council & Anor [2016] EWHC 3028 at [141]-143]. I should cite [143] in particular. They are the words of a Judge, like Lindblom LJ, with particular experience of the law of Town and Country Planning

“143 But for my part I should make it clear that in interpreting the NPPF and considering the relationship of its policies as "other material considerations" to the policies of the statutory development plan and section 38(6), I see no necessity or justification for decision-makers in the field, whether LPAs or planning Inspectors or the SSCLG, to be concerned with this novel concept of "residual discretion", or whether it is in truth "residual", or the ambit of any such discretion. It is sufficient for them to rely upon the explanation of the relationship between paragraph 14 of the NPPF and section 38(6) which has been set out in established case law, notably by Lindblom LJ in (Suffolk Coastal) (eg. paragraphs 6 to 19). The East Staffordshire case illustrates the risk of this area becoming unnecessarily legalistic. That would hinder rather than promote straight forward and efficient decision-making. I would only add that practitioners should cease to confuse policies of the SSCLG (or LPAs) which describe what qualifies as sustainable development with policies which define particular circumstances in which a presumption in favour of sustainable development applies. Difficulties caused in recent decision-making and litigation would not have occurred if that distinction had been respected.”

(b ) The Inspector’s Report of March 2014

The Inspector identified four main issues at his paragraph [12.1]. The policies referred to appear in the Local Plan (“LP”), which is part of the Development Plan.. The issues were

(a)

the character and appearance of the area with particular regard to the open countryside and LP policies NE.2 and RES.5;

(b)

whether or not the Council can demonstrate a 5 year Housing Land Supply and the implications of this with regard to policy in (NPPF);

(c)

the loss of BMV (best and most versatile) agricultural land, and;

(d)

the loss of trees.

It is unnecessary to recite the issues relating to Appeal B.

Policy NE2 treated all land outside the defined settlement boundary as open countryside, where development was restricted. The policy sought to protect the countryside for its own sake. RES.5 restricted the provision of new dwellings outside settlement boundaries. Policy NE.12 dealt with agricultural land quality. It stated that development on the best and most versatile agricultural land (i.e. Grades 1, 2 and 3A in the Ministry of Agriculture Classification) will not be permitted unless, one of three criteria applied. The second criterion was that “ it can be demonstrated that the development proposed cannot be accommodated on land of lower agricultural quality, derelict or non agricultural land.”

It follows that agricultural land falls to be dealt with as open countryside under Policy RES 5 and NE2. In addition, if it was BMV land, then development upon it would comply with policy NE.12 if the criterion was met.

When addressing the first issue, the Inspector considered the effect of the policies identified in the context of the adequacy of the housing land supply. He accepted the argument advanced by the claimant that, if there was an inadequate supply, the Development Plan policies should be regarded as out of date. He treated that as meaning that they carried “no weight” – see [12.3] to [12.4] of his report. Both the Claimant and the Defendant accepted before me that that approach was unlawful. As I shall indicate below, it is by no means clear that the Inspector was in error in that regard.

He then addressed the housing land supply position. He concluded that the housing requirement should be taken as 10,700 over the next 5 years ([12.10} and that the supply figure was 8500 dwellings [12.13]. Even if the Council’s figures were accepted, there would still be a shortfall [12.14]. He went on

“Consequently, the elements of policies NE2 and RES5 which serve to limit housing in the countryside should be considered as not up to date and so be afforded no weight in this Decision”

and in doing so referred to NPPF at its [49], which I have cited above.

He then dealt with the BMV land issue as follows.

“12.16

There was no dispute that the scheme would result in the loss of agricultural land in the open countryside, but the Council has insufficient land for housing without taking greenfield land and lower grade land is not available.”

It should be noted that he had heard expert evidence that 25% of the appeal site was BMV land, and that there was a good deal of BMV land in the area, and that recent appeal decisions had allowed the development of agricultural land where the BMV percentages were higher. – see [6.8].

He then dealt with the issues of trees, which raises no matter germane to this application.

The Inspector then passed to his conclusions. He concluded that the development would be sustainable in economic terms in terms of its provision of housing, housing jobs, further growth and new employment in a preferred location (Nantwich) ([12.20] ) . The housing would contribute to the social role in NPPF by reason of its provision of affordable housing, a school, play area and public open space. It was also in a sustainable location. It would also comply with the design emphasis in NPPF ; see (12.21]- [12.22])

He concluded that the loss of trees, BMV land and open countryside would harm the environment ([12.23]). However the first would be avoided through the use of a condition. As to the other two he said that “the unavoidable circumstances in Cheshire East would mean that the latter two would not conflict with up to date LP Policies.”(ibidem). At [12.26] –[12.27] he stated that

“For all the above reasons, I conclude that there is a need for additional housing in the area which cannot be met by the existing supply of housing land and that greenfield development will need to be used to meet this requirement. It follows that the need for housing would outweigh the harm to the character and appearance of the countryside and the loss of some BMV agricultural land.

On balance Appeal A would accord with up to date policies in the development plan as a whole and the scheme would comply with the policy presumption in (NPPF) which should be afforded considerable weight.”

As already noted the first decision letter disagreed with the recommendation, and refused permission. That decision was quashed.

(d ) The Decision Letter of August 2016

The Secretary of State (“SSCLG”), in addressing the issue of the housing land supply, noted the further representations received. Among other matters he recorded that the Local Planning Authority had informed him that

“ there is no prospect of a plan being adopted in the foreseeable future and that the Council is still unable to demonstrate that it has a deliverable supply of housing” ([9])

He then noted the Suffolk Coastal decision, and stated that in the light of that case the Inspector had erred in “ignoring the out of date policies and giving policies NE.2 and RES5 no weight pursuant to paragraph 49 of (NPPF)”

I pause there. The SSCLG has not given an accurate account. By “ignore” the SSCLG is referring to the fact that that the Inspector had given the policy no weight. In fact the Inspector had not ignored the policies at all, but had had regard to them, and then chosen to give them no weight, having applied the SSCLG’s own policy in NPPF. But as noted above, with reference to the words of Lord Hoffman in Tesco v Secretary of State, there is nothing wrong in principle with a decision maker deciding to give a material consideration or policy “no weight.” One must go further; the approach of according such policies no weight is entirely consistent with the effect of paragraphs 14 and 49 of NPPF. All that Suffolk Coastal reminds one of is that section 38(6) of the 2004 Act still applies, and NPPF cannot have the effect of removing the need to have regard to the policy in question, or of supplanting the statutory test. If the relevant policy attracts no or little weight, then it is more likely that that the effects of applying the NPPF policy will result in material considerations outweighing the effect of the policy. But it does not have the effect of preventing decision makers from deciding to give a development plan policy any degree of weight they choose, from none to substantial.

The SSCLG then stated at paragraph [21] that he considered them to be relevant policies, but given the fact that the local planning authority could not demonstrate a 5 year supply of housing sites, the polices should not be considered up to date. He considered that they should carry reduced weight ([21]. He then determined how much weight he gave them, and said at paragraph [22]-[25] that

“ 22 He has taken into account the Council's reference back response of 25 April 2016, which states that in the light of the steps the Council is taking to remedy the shortfall in housing supply, including progress on the Local Plan and the fact that large scale housing has been approved in Nantwich, the countryside policies can properly be apportioned weight. He has also taken account of the Council's statement that only 60% of the Borough meaningfully contributes to housing supply because of constraints such as Green Belt and other significant designations which require the Local Plan to formally unlock. He notes that settlement boundaries will be reviewed and defined through the production of the Site Allocations and Development policies DPD and neighbourhood plans, and that the Council proposes to consult on an Issues and options paper later in 2016.

23.

The Secretary of State has also taken into account that the overall purpose of these policies is to protect the countryside, which accords with the core principles in paragraph 17 of the (NPPF) to recognise the intrinsic character and beauty of the countryside and to conserve and enhance the natural environment. He considers that they are generally consistent with the (NPPF)

24 The Secretary of State considers that the policies and the boundaries serve a sound planning purpose; it would be necessary to have boundaries to define the ambit of open countryside and so the justification for boundaries remains. He acknowledges that the settlement boundaries are based upon the existing defined settlement boundary in the Crewe and Nantwich Local Plan 2005, and are not based upon an up-to-date assessment of housing need. The boundaries will therefore need to be reviewed, and some boundaries adjusted to remove some land for development from the open countryside. However, it is likely that not all boundaries will change, and not all countryside will need to be opened up for development. In the light of these considerations and the Council’s statement at paragraph 5.23 of their 12 August 2015 representation that ‘it is not a place where it would be appropriate for the settlement boundary to flex’, he considers that weight should still be given to the boundaries at the present time.

25.Overall, having considered paragraph 215 of (NPPF) he considers that these policies and boundaries carry reduced but still significant weight.

It follows from my observations above that the SSCLG was entitled to do just that. The SSCLG then turned to the character and appearance of the countryside at paragraphs 26-29. He stated

“26.The Secretary of State has taken into account that there was no dispute that the Appeal A proposal for new housing in the countryside, outside the settlement boundary for Nantwich, would conflict with saved LP Policies NE.2 and RES.5 (IR12.3). Having also had regard to the representations submitted following the quashing of his previous decision including those submitted by you on 11 and 28 August 2015 and by the Council on 12 August 2015, he is satisfied that this remains the case. For the reasons set out in paragraphs 22-25 above, he gives these policies reduced but still significant weight. He further considers that the Appeal A proposal would conflict with emerging policy PG5 of the CELPS, and emerging policy GS3 of the Stapeley and District Neighbourhood Plan, albeit these emerging policies carry little weight.

27.The Secretary of State has taken into account that the loss of open countryside would harm the environment (IR12.23), and he agrees with the Inspector at IR12.26 that there would be harm to the character and appearance of the countryside. The Secretary of State agrees with the Inspector that there is a need for additional housing in the area which cannot be met by the existing supply of housing land and that greenfield agricultural land will need to be used to meet this requirement (IR12.26).

28.He has also taken into account the Council’s statement that ‘the appeal site makes a positive contribution to the character of the open countryside and the rural setting of Nantwich. The protected trees also have a significant and recognised amenity value. The proposed development would adversely change the character of this part of Stapeley and would result in the loss of intrinsic beauty and rural character of the area. However well landscaped as a housing estate, the proposed development would utterly transform, and cause a change for the worse to, the site and the area’s intrinsic character and beauty as countryside’ (paragraphs 5.19-5.22 of the Council’s 12 August 2015 representation). Although the Council’s concerns about the loss of trees can be avoided (paragraph 35 below), it would not be possible to prevent the harm that would be caused to the character and appearance of the countryside.

29.Overall he considers that the harm to the character and appearance of the open countryside carries considerable weight.”

The SSCLG then turned to the issues relating to BMV agricultural land. Having noted the correct position, that the percentage of the two sites when aggregated was that 25% was BMV land (it being Grade 3a), he went on at paragraphs 31-2 to state

“ 31.Having taken into account all the available evidence, the Secretary of State agrees with the Inspector at IR12.16 that there is no dispute that the scheme would result in the loss of agricultural land in the open countryside. Further, he concludes that the scheme would result in the loss of some BMV land, albeit a proportion of that is already subject to an extant planning permission. The Secretary of State observes that LP Policy NE.12 does not permit development on BMV agricultural land unless: the need for the development is supported in the local plan; it can be shown that the development proposed cannot be accommodated on land of lower agricultural quality, derelict or non-agricultural land; or other sustainability considerations suggest that the use of higher quality agricultural land is preferable to the use of poorer quality agricultural land. The Secretary of State considers that Policy NE.12 is largely consistent with paragraph 112 of the (NPPF), and is consistent with its objectives.

32.The Secretary of State has taken account of the Statement of Common Ground (listed as document 31a at page 2 of the IR) which states ‘It is agreed that in order to meet likely housing land supply needs some greenfield sites will have to be utilised’. He has also given careful consideration to the Inspector’s remark that the Council has insufficient land for housing without taking greenfield land and that lower grade land is not available and that, consequently, the scheme would not conflict with Policy NE.12 (IR12.16). He notes that the Statement of Common Ground does not state that the greenfield land required must consist of BMV land. He further notes the Appellants’ representations that previous appeals have been granted which involve much greater losses of BMV land, that the Council has sought to allocate land for development on BMV land, and that the Council has granted planning permission for many housing sites involving an element of loss of BMV land (IR6.8 and your representation of 11 August 2015). However, he does not consider that decisions relating to other locations are determinative of the approach which should be taken in the circumstances of this case.

33.Overall he considers that the need for the use of BMV land at this location is not supported in the local plan. For the reasons given in paragraph 32 above, he considers that it has not been demonstrated that the need could not be accommodated on land of lower agricultural quality. He is not satisfied that there are other sustainability considerations to suggest that the proposed use of BMV land is preferable to the use of poorer quality agricultural land. He therefore disagrees with the Inspector and considers that there is conflict with Policy NE.12.

34.Taking into account the evidence on BMV land from the inquiry, the Secretary of State considers that the loss of BMV land that would arise as a result of this scheme would be harmful. As well as bringing the scheme into conflict with LP Policy NE.12, this harm would conflict with paragraph 112 of the (NPPF). He considers that this harm carries moderate weight.”

After addressing landscaping issues, he determined that harm would not arise in relation to that topic. He also addressed conditions and planning obligations.. He then turned to the “Planning balance” at paragraphs [41]- [49]. Having referred to s 38(6) of the PCPA 2004, he continued from [42] as follows

“42.For the reasons given at paragraphs 20-25 above, the Secretary of State considers that LP policies NE.2 and RES.5 are not up to date and carry reduced but still significant weight. For the reasons given at paragraphs 26-29 and 30-34 above, he considers that harm would arise from the conflict with policies NE.2 and RES.5. He concludes that Appeal A would not be in accordance with the development plan overall and has gone on to consider whether there are material considerations that indicate Appeal A should be determined other than in accordance with the development plan.

43.The Secretary of State considers that the Appeal A proposal would conflict with emerging policy PG5 of the CELPS, and emerging policy GS3 of the Stapeley and District Neighbourhood Plan. Since he gives this conflict only little weight, he does not consider that this is sufficient to justify refusal on prematurity grounds, and this is not determinative of the decision made on this appeal.

44.Given that policies for the supply of housing are out of date, the Secretary of State considers that paragraph 14 of (NPPF) is engaged. Therefore he has considered whether the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the (NPPF) policies as a whole.

45.Weighing in favour of the proposals, the Secretary of State agrees that the construction of new housing would create jobs, and support growth, as would new space for employment development (IR12.20) and considers that the economic benefits of the scheme carry moderate weight. Having had regard to the Inspector’s remarks at IR12.21-12.22 he considers that the provision of housing and affordable housing carries considerable weight in favour of the proposals and would be in accordance with paragraph 47 of the (NPPF) and the policy objective of boosting significantly the supply of housing. He agrees that a primary school, children’s play area and public space including a new village green, would add to the social benefits, and he has taken into account the contributions toward new bus stops and an extensive service linking with the town centre and railway station. He further agrees that the proposed pedestrian/cycle network would provide safe, direct, convenient and interesting routes through the site, and that subject to reserved matters, the proposals have the potential to achieve the good design which is promoted by the Guidance. He considers that these benefits carry moderate weight. He considers that the provision of allotments and green infrastructure carry limited weight in favour of the proposals (IR12.23).

46.Weighing against the proposals, the Secretary of State considers that the proposals would cause harm to the character and appearance of the open countryside, for the reasons given at paragraphs 27-28 above. This harm would be in conflict with paragraphs 7 and the 5th and 7th bullet points of paragraph 17 of the (NPPF). Having given careful consideration to the evidence to the Inquiry, the Inspector’s conclusions and the parties’ subsequent representations, the Secretary of State considers that the harm to the character and appearance of the open countryside should carry considerable weight against the proposals in this case. He further considers that the loss of BMV land is in conflict with paragraph 112 of the (NPPF)and carries moderate weight against the proposals, for the reasons given at paragraphs 31-34 above.

47.The Secretary of State concludes that the environmental dimension of sustainable development is not met due to the identified harm, especially to the character and appearance of the countryside. He concludes that the development does not deliver all three dimensions of sustainable development jointly and simultaneously, and is therefore not sustainable development overall.

48.For the reasons given above, the Secretary of State concludes that the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the (NPPF) taken as a whole.

Overall conclusion on Appeal A

49.The Secretary of State has found that Appeal A would conflict with the development plan overall. He has considered whether there are material considerations to justify determining the appeal other than in accordance with the development plan. Having taken into account all material considerations, including the need for and benefits of the provision of housing, he has concluded that overall the material considerations do not indicate that Appeal A should be determined other than in accordance with the development plan.”

(e ) The Grounds of Challenge

Ms Wigley’s four grounds as pleaded were

a)

that the SSCLG had given “Inadequate reasons for the decision to accord “considerable weight” to the harm to the character and appearance of the open countryside in this particular location, a decision that was contrary to the principle of consistency in decision making.”

b)

“Misinterpretation of his own policy (the NPPF), reading in a requirement that all three roles of sustainable development must be met simultaneously for a proposal to represent “sustainable development” overall.”

c)

“Irrational conclusion and/or failure to give adequate reasons for the bare assertion that the “adverse impacts of granting permission would significantly and demonstrably outweigh the benefits” and consequent failure to take into account as a material consideration the presumption in favour of sustainable development under paragraph 14 of NPPF.”

d)

“Departure from his Inspector’s finding of fact (as to the lack of availability of lower grade agricultural land) without adequate reasons or justification or regard to relevant evidence and consequent misapplication of development plan policy NE 12 and national policy NPPF para 112.”

I shall start with the second ground. Looking at the Decision Letter, there is a notable omission, namely that SSCLG has never approached the issue as he was required to if he chose to follow his own policy in NPPF: i.e. having found that the polices were out of date (as he did), he then had to apply the policy in paragraph 49, namely that the proposals had to be considered in the context that there was a presumption in favour of sustainable development, which is of course found in paragraph 14.

In Cheshire East Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 571 (Admin) Jay J considered the effect of the presumption in paragraph 14. He described the importance of the process involved. Part of that process involved considering whether the adverse impacts of the development would significantly and demonstrably outweigh the benefits when assessed against NPPF as a whole,

Mr Whale described the wording of paragraph 47 as “unfortunate,” and accepted that it did not represent the test in the policy. It is right to say that paragraph 8 of NPPF contains the advice that

“These roles should not be undertaken in isolation, because they are mutually dependent. Economic growth can secure higher social and environmental standards, and well-designed buildings and places can improve the lives of people and communities. Therefore, to achieve sustainable development, economic, social and environmental gains should be sought jointly and simultaneously through the planning system. The planning system should play an active role in guiding development to sustainable solutions.”

That is a matter of general exhortation, and is no doubt praiseworthy. But it is not intended to suggest that any development must achieve those attributes jointly and simultaneously. Such an expectation would be bound to end in disappointment. In interpreting NPPF one must have regard to the context that the thrust of the housing policies in NPPF is to encourage housebuilding (see the discussion in Suffolk Coastal at [25]-[30]. Policies which seek to restrict housebuilding in the countryside are policies for the supply of housing within the meaning of paragraph [49] of NPPF (see Suffolk Coastal at [36]). It is therefore to be expected that if not in all, but certainly in very large numbers of cases, where there is a shortfall in the housing land supply, countryside will be taken as a result of the policy presumption in paragraph [14], which is brought into play by paragraph [49], It follows of course that, if one is following the policy approach in NPPF, a loss of some countryside is to be anticipated in cases where the policies are not up to date because of the deficiencies in housing supply.

No such test as applied in paragraph 47 of the Decision Letter appears in NPPF as being applicable to each development. If he was applying NPPF, then the policy is what is set out at paragraph 14, and once the SSCLG had determined that the policies were out of date, as he had, he then had to ask whether any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against NPPF as a whole. He gave no indication that he had chosen not to apply paragraph 14.

The decision letter would not be objectionable as a piece of reasoning if paragraph 47 had never appeared, but the fact is that it does. It cannot be a matter for disqualifying a development for consideration that it is not sustainable development “overall.” That term implies that it is sustainable in some respects but not others. But the question posed by paragraph 14 is not whether there would be some harm in one significant respect. It is whether that and any other harm outweighs the benefits significantly and demonstrably. The inclusion of paragraph 47 implies that the Secretary of State has applied a test outwith paragraph 14. While he may depart from his own policy if he gives reasons for doing so, he has given no reasons for departing from his own policy in this respect. This ground is certainly arguable.

A great deal of Ms Wigley’s arguments were directed towards the judgements formed by the SSCLG about the value of the countryside, or the degree of weight he attached to particular factors. None of those arguments persuade me that the SSCLG fell into error. He was entitled to form judgements and assess weight as he thought it should be assessed. That is not the subject of proper complaint, whereas his failure to apply a reasoned departure from his own policy is arguably so.

Ground (c) adds nothing to ground (b) save for the allegation of irrationality, and lack of reasons in the context of the SSCLG forming the judgement on whether he thought that the harm outweighed the benefit. I refuse leave on that ground.

I turn now to ground (d). The essence of the complaint by Ms Wigley is this. The appeal was conducted on the basis that there was a shortage of housing land which had to be met if the policy aspirations of NPPF were to be met. This Council had a substantial requirement for housing, and all were agreed, both at this appeal and in other cases referred to in the evidence, that BMV land would have to be used if the need were to be met. It will be recalled that the Inspector had concluded that the relevant criterion in the Local Plan had been met. The Council’s Rule 19 statement contains no reference to loss of BMV in the context of meeting the 5 year requirement, and the evidence before the Inspector from the Claimant’s expert witness Mr Reeve showed that sites were being approved on appeal or by the local planning authority with significantly higher percentages of BMV land, as referred to by the Inspector at [6.8] of his report. The loss of BMV land is not recorded by the Inspector as part of its case at the inquiry [7.16]. The SSCLG has rejected this as relevant on the basis that it related to decisions and other locations, which he did not consider should be “determinative of the approach which should be taken in the circumstances of this case.”

Thus, says Ms Wigley, the Secretary of State had no rational basis for departing from the Inspector’s finding. In my judgement it is, to say the least, hard to see on what basis the SSCLG reached the conclusion he did. This was an undisputed point supported by expert evidence and endorsed by the Inspector in his report. No one was asking him to say that the approach taken at other inquiries should be determinative. The significance of the evidence was that one could infer from it that the need could only be met by releases of land containing at least as much BLV land as this. That ground is certainly arguable.

I turn now to ground (a). As pleaded, it has no substance. As noted above, weight is for the decision maker, and it was for the Secretary of State to assess what weight he gave to the retention of this site as open countryside. However one can well understand the Claimants’ perplexity. The site lies close to other sites released on appeal or approved by the local planning authority with development to the north and west, and now to be enclosed to the east by further housing development approved since the decision. But the decision maker was entitled to reach the views about the countryside which he did.

As to consistency, the Claimant’s case as argued in the grounds was not that the approach to decision making or policies in other approvals were granted were such that reasons had to be given for reaching different conclusions, as for example in the well known case which related to other land in this Council’s area: Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198 [2013] 1 P. & C.R. 6.

The points I have made earlier in this judgement about the interpretation and application of policy are apposite here. But, as developed, the argument of Ms Wigley became one about prematurity- i.e. whether the SSCLG had actually approached this case at paragraphs [18]-[25] , and in particular at [24] where what he was actually doing was dismissing the appeal on the basis that it was premature pending the approval of the Local Plan. If so, it was then argued that he had not followed his own policy on how decision makers should approach the issue of prematurity in Planning Guidance at Paragraph: 014 Reference ID: 21b-014-20140306 . (Such policy is published on the web. It is called “ Planning Practice Guidance” but actually contains some statements of policy, of which this is one.)

I gave leave to Ms Wigley to apply to amend her ground accordingly, should the Claimant wish to do so.

In conclusion, I consider that grounds (b) and (d) are arguable. Ground (c) is unarguable. As currently drafted ground (a) is unarguable.

Ms Wigley has now failed an amended ground (a) to which the Defendant has no objection. It states

“Inconsistency of decision making, inadequate and flawed reasons and failure to take into account relevant policy in the decision to accord “significant weight” to the harm and character of the open countryside in this location and to accord “significant weight” to the related policies.”

However when one reads the justification for the grounds, different points emerge:

i)

It is argued that there is an inconsistency of approach to policy and to the significance to be attached to the protection of the countryside, with reference being made to other planning decisions, both by the local planning authority and on appeal, it being contended that the principle in North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137 should be applied;

ii)

It is argued that in essence the SSCLG has actually taken an approach based on the development being premature, without considering his own policy.

As this is the Administrative Court, precision in pleading is not as important as it can be elsewhere, but I am bound to say that the actual amended ground does scant justice to what are two important arguments contained within the supporting justification. I shall grant leave to amend, but it must be understood that it is on the basis of the justification at paragraphs 1-19. I would also observe that as this is a different site from the other sites where permission was granted, North Wiltshire is actually less apposite than its subsequent application to issues of approach, as considered in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198 [2013] 1 P. & C.R. 6.