Williams, R (on the application of) v Northumberland County Council

This case concerns a claim for judicial review brought by Stephen John Williams acting as a Litigant in Person (‘Mr Williams’), against the Northumberland County Council (‘NCC’) acting through counsel Simon Pickles, in respect of their decision made on 14 June 2019 concerning a notice of planning permission for development of up to 20 dwellings (100% affordable) at land southwest of St Cuthbert’s Close, Main Street, North Sunderland, Northumberland (‘the Decision’).

There are now only two grounds at this substantive hearing described by Mr Williams as follows:

Grounds 1 and 3 are opposed by NCC who, in conclusion, in his skeleton argument Simon Pickles say as follows:

Both grounds were concerned with affordable housing and the lawful/irrational approach a local authority should take to such planning applications in an

On 26 July 2019 Mr Williams, issued a judicial review Claim Form reference number CO/2925/2019 against NCC and Ms Shelia Carr and Mr Walter Dunn as Interested Parties in respect of planning application number 17/01819/OUT. Attached was an undated Statement of Facts and Grounds which relied on five separate grounds. Mr Williams acted as the Litigant in Person and did not contend this was an Arras Convention claim. The remedy sought was quashing the Decision.

Insofar as relevant to this claim, Ground 3, at paragraph 43, provides as follows: ‘Both the [Report] and [Addendum] gave vague statements of “expressions of interest” from providers and how the development would make a contribution to the affordable housing stock. “Demand” for affordable housing is a phrase that appears several times. Nothing is supported by data. Concerns were raised during the consultation process about the robustness of this evidence, in particular that demand was not necessarily the same as need’.

It is this particular wording which forms the basis of Ground 3 and nothing further.

NCC Acknowledge of Service was accompanied by the Defendant’s Summary Grounds dated 12 August 2019 settled by Simon Pickles of counsel.

On 12 September 2019, following consideration of the documents lodged by NCC and the Acknowledgement of Service and other documents filed by NCC, an order was made by HHJ Kline (sitting as a High Court judge) which granted permission on Ground 3 alone in the following specific terms:

The relevant observation of the judge on Ground 3 and on Ground 1 were as follows:

On 14 October 2019, NCC’s counsel Simon Pickles settled the Defendants Detailed Grounds limited to Ground 3. The document made reference to the provision of a witness statement from Ian Stanners of NCC.

By an undated document Mr Williams gave Notice of Renewal solely on Ground 1 in the following terms:

By an undated document Mr Williams filed a Response to Defendants’ Detailed Grounds and a witness statement on Ground 3, alone. It is this document that he particularly relies upon in his oral submissions made today on Ground 3.

On 26 November 2019 counsel for NCC Simon Pickles settled the Defendants’ Written Submissions in response to Mr Williams’ Notice of Renewal on Ground 1.

The Notice of Renewal on Ground 1 came before me on 3 December 2019, attended only by Mr Williams and not NCC, in which he provides a ‘speak-to’ document from which he read, with submissions together with a supporting file of documents.

On 1 December 2019 I granted permission for Ground 1 generally. In accordance with the Notice of Renewal dated 20 September 2019 and required service of the documents on NCC.

NCC served the Defendants’ Additional Detailed Grounds to Ground 1 on 18 December 2019 which was, again, settled by Simon Pickles of counsel.

In accordance with my order a trial bundle of documents, together with a skeleton argument, dated 13 January 2020 from Mr Williams, and the Defendants’ skeleton argument, again settled by Simon Pickles, also dated 13 January 2020.

At the oral hearing of this claim which was set down for a day and a half including this ex tempore oral judgment, both Mr Williams and Simon Pickles, of counsel, have agreed that the ‘speak-to’ documents would be the basis of their submissions and the document upon which this ex tempore oral judgment, should be based.

NCC comprise a large swathe of both coastal and inland area in which a small area comprises three parishes of Bamburgh, Seahouses and North Sunderland and Beadnell, who together produced a Joint Neighbourhood Plan under the Localism Act 2011. The three parishes, themselves, include both the coastal and inland area.

On 10 July 2018 Seahouses and North Sunderland Parish Council published a Policies Plan on a scale of 1:4,000 showing hatched in orange the Northumberland Coast AONB which covered much of the parish and included the land the subject of this planning application. Delineated in black was a settlement boundary referring to Policy 8 and touched the southwest corner of this black boundary inland from the coast and is the land subject to this planning application.

A site layout plan, for illustrative purposes only, has been provided and it shows a road continue across the settlement boundary into the land the subject of this planning application with 20 houses arranged around the proposed new road. The effect is to continue what was quite a large area of housing, mainly in the North Sunderland County Parish, outside, but attached to, the settlement boundary, all of which is land not on the coast but well inland.

On 22 May 2017 Mrs Sheila Carr and Mr Walter Dunn, the Interested Parties who have taken no part in this claim, made an outline planning application number 17/01819/OUT, proposing the erection of 20 dwellings on land which comprises 1.06 hectares, which was amended on 23 April 2018 to refer to affordable housing.

Originally, on 24 May 2018, NCC officers reported to the committee with a recommendation for approval of planning permission (‘the Report’) and, subsequently, the officers provided an addendum report to committee on 18 October 2018, likewise recommending for approval of the planning application (‘the Addendum’).

At a meeting of the committee of NCC on 18 October 2018 the officers’ recommendations as amended was accepted and the result was a Decision (“the Meeting”).

Prior to the Report officers of NCC had looked into the housing need for affordable homes and the Report and Addendum formed the basis of the decision.

Ian Stanners is the housing enabling officer (previously known as the affordable housing officer) of NCC and a significant element of his duties was the assessing and advising on the need for affordable homes in specific locations for NCC. He deals, in his witness statement dated 17 October 2019, in paragraphs 8-18, with the relevant background prior to the Report from which I ought to quote the key paragraphs:

The Report deals with both principal development approach to Policy 1 and Policy 9 including rural exception sites, and a major development in an AONB and the planning obligations, including factual position of affordable housing and visual impacts in an AONB, for which I quote the following more important parts:

The Addendum deals with objections made by Mr Williams in a letter before claim which challenged the data relied upon in the Report.

Mr Williams’ proposed claim for judicial review pre-action protocol letter dated 11 July 2018 dealt with, amongst other things, both the development scale and the local need for affordable housing in the following way: The Addendum considered by Mr Williams considered the response as follows: ‘Affordable housing – local need’.

The Meeting

The Meeting was attended by NCC’s chair Councillor C Castle and the planning vice-chair, Councillor T Thorne, and attended by officers of NCC including a senior planning officer, a lawyer and Mr Stanners, and they considered both the Report and the Addendum.

The members of NCC committee questioned and received answers from officer’s present concerning Policy 1 and Policy 9 in the following way:

Consideration has been given to both the National Planning Policy Framework and theNorth Northumberland Coast Neighbourhood Plan and reference should be made to the Policies Plan document, which I have referred to above, and the plan of location and, also, for the meeting, of the Policies Plan dated 10 July 2018- Other Planning Documents.

The National Planning Policy Framework dated July 2018 (as revised) deals with affordable housing both in their own right and in the context of rural housing and exception sites as follows: ‘In rural areas planning policies and decisions should be responsive to local circumstances and support housing developments to reflect local needs. Local planning authorities should support opportunities to bring forward rural exception sites that will provide affordable housing to meet identified local needs and consider whether allowing some market housing on these sites would help to facilitate this’

The definition in the appendix to the glossary of rural exception sites is as follows: ‘Small sites used for affordable housing in perpetuity where sites would not normally be used for housing or exception sites seek to address the need for local communities by accommodating households who have either current residence or having existing families or employment connections, the portion of the market homes may be allowed on the site at the local planning authority’s discretion, for example, essential to enable to deliver affordable units without granting funding’.

The Glossary and Appendix 2 provides no definition of ‘small sites’ by means of any limitation in the number of houses permitted.

There is, in addition, no guidance in respect of AONB which, as this is the relevant area to this planning application, provides as follows:

The footnote, the definition of ‘major development’ is a matter for the decision-maker taking into account its natural scale and setting or whether it could have a significant adverse impact on the purposes for which the area has been designated or defined. As a matter of record, there is no definition of what is meant by ‘limited’ within that clause, or, indeed, any definition of a small site in terms of size or numbers, the matter is open.

North Northumberland Coast Neighbourhood Plan (November 2017) was the relevant neighbourhood plan at the date of the Report but subsequently, as noted in the Addendum, the relevant Neighbourhood Plan for the meeting was (10 July 2018). There are differences between these two Neighbourhood Plans of which probably the most important is the introduction in Policy 9 of the concept of ‘exception’ sites which accords with the change in July 2018 of the National Planning Policy Framework as set out above.

The correct approach take to the interpretation of this development is now well established by way of Tesco Stores Limited v Dundee City Council [2012] UK13 per Lord Reed, in particular, at paragraphs 18 and 19 as follows:

Before coming to Policy 1 and Policy 9 of the Neighbourhood Plan it is necessary to set out that whole context and that would include reference to Sections 2 and 3 and others I will come to in a moment as follows:

The explanatory text to Policy 1 provides assistance as follows:

The explanatory notes to Policy 9 are short but important and say as follows: ‘Settlement boundaries have been created in the plan having regard to planning principles established in the PPF and, in particular, have been defined to ensure recognition of the intrinsic character and beauty of the countryside of the neighbourhood area. The settlement boundaries are not intended to stifle development but could make a positive contribution to sustained communities in the Neighbourhood Area that reflects the intention of national policies and guidance. Therefore, proposals such as those offering local employment opportunities – exception – sites for 100% affordable housing provision, sensitive car parking proposals or other facilities and services that would benefit the local community are supported by this policy’. (4.54)

Policy 9 is to be construed with Policy 8 in that the former concerns development outside the boundary and the latter concerns sustainable development inside the boundary. The wording of the two is materially different and, in particular, wording for policy in respect of small-scale development is redolent in Policy 8 but not so in Policy 9.

Reference can also be made to other parts of the document as a whole including Policy 14 concerning people and principal housing together with its expansion note which provides: ‘It is expected that affordable housing will be provided as necessary in line with the most up-to-date development plan policy concerning affordable housing and in line with up-to-date evidence of affordable housing need. There is an issue with affordability of housing to buy in the neighbourhood area as prices are above average compared to Northumberland. There is also a lower than average availability of affordable rented property in the area’. (5.4)

Reference should also be made, for fullness, to other planning documents which are, in the past, or in the future, concern affordable housing and exception sites.

The Berwick upon Tweed Local Plan 1999 includes Policy S6 which provides:

Subsequent to the Decision NCC are in the process of developing their local plan, which was drafted January 2019, which deals with the exceptions sites in Policy HO7 which provides:

Mr Williams’ ‘speak-to’ document in summary puts the following submissions on Ground 1:

In his ‘speak-to’ document, Simon Pickles, counsel for NCC, recorded as a preliminary matter that the main issue on Ground 1 was with the conclusion that the local Neighbourhood Plan as a whole was irrational having regard to the proper interpretation of Policy 9 as it rates the scale of development to confirm the correct approach was well-established, test in Tesco Stores (supra) and highlighted the difference between the Early Neighbourhood Plan available and the Report and the relevant Neighbourhood Plan at the Meeting which informed the Decision.

Simon Pickles proceeded to analyse the case in two separate limbs relied upon by Mr Williams in his renewal notice. The first limb concerns whether small-scale policy governs the scale of exception sites supported by Policy 9. The second limb concerns the decision to grant said to be tainted by irrationality by virtue of restriction on the exceptional sites to small sites in the emerging local plan. On the first limb of Ground 1 he invited consideration of the relevant neighbourhood plan to be considered as a whole, and makes four points:

The interpretation of Policy 9(d), which is at the heart of this dispute on Ground 1, was construed by him in this way:

In respect of the second limb of Mr Williams’ case, the matter was dealt with really quite shortly. There was no rationality in having an emerging draft Neighbourhood Plan in different terms of that of the boundary decision. The policies, and they did not contradict each other, were not irrational and there is no basis to refer back to the plan.

In reply, Mr Williams submitted that the intention of the Neighbourhood Plan and the real exception sites did not concern with Policy 1 as it operated through Policy 9 but referenced a plan in those policies and the general Neighbourhood Plan in all cases was to be assessed in that way.

Ground 1 has been placed in the context of extensive material that I have set out above and on analysis, therefore, can be properly dealt with really very shortly. The first limb, which is a central argument in this case, is a matter of interpretation of planning documents, in the usual way which, in my judgement, do allow a clear answer.

The starting point of the true and proper construction of Policy 9 makes it clear that the concept of ‘small scale’ as defined in the explanatory note of Policy 1, is not the test to be applied when it comes to sustainable development outside the settlement boundary in rural exception sites of affordable housing. If there is any test or consideration that has to be it is that it should not provide a negative impact on sensitive settlement edges. The explanatory notes to Policy 9 indicate that the settlement boundaries are not intended to stifle development but make positive contribution, and proposals to offer exceptional sites for 100% housing as supported by this policy.

The driver of this policy and the change from the previous Neighbourhood Plan in existence on the date of the Report is not relevant to the Decision as developed and the new concept of rural exception sites in the National Planning Policy Framework provided in July 2018 dictates the approach and is, in effect, mirrored the NCC, of the Neighbourhood Plan dated 10 July 2018. At the time of the Decision the concept of small site carried over to the National Planning Policy and specified an undefined and, therefore, permitted

It is, of course, right that the NC Neighbourhood Plan is to be read as a whole and cross-referencing is not necessary as indicated by Policy 3, however, one cannot carry a concept of ‘small sites,’ as defined at Policy 1, over to Policy 9 when the language of Policy 9, at the time, provided no such limitation. There is no rational basis for that interpretation to be adopted by NCC at the material time of this planning application and the Decision.

In taking this approach it is not my intention to do more than construe and properly, interpret on a rational basis, Policy 9, as it was so framed at the date of the Decision. The NCC and other neighbourhoods in the country are in the process, no doubt, of continuing to define the concept of a ‘small site,’ adopted from the National Planning Policy Framework, but that document does not provide a constraint on numbers but rather a broad concept, and thus the usual meaning to be given to the language used is to be followed for which no definition is provided. This is not a case which I propose to provide a useful guidance as to how the term should be treated, other than focusing on Policy 9 as drafted at the material time and there is no basis, in my judgement, for which by implication or limitation, even adopting the approach from Policy 3, that Policy 1 can have the effect suggested by Mr Williams.

The second limb of the argument is really very short. Only limited weight can be given to the Emerging Plan of HOU7 as construed in Policy 9 and I am unable to find any irrationally in the Decision, simply by virtue of the fact that different terms were adopted in the matter of drafting process, for future reference to planning applications, and whilst that may affect further developments in the future, at the time of this application for planning permission these three parishes adopted the wording that I have described above.

Mr Williams’ ‘speak-to’ document deals with these grounds more shortly and, in summary, he says as follows:

The ‘speak to’ document of Simon Pickles, for NCC, takes the limit of the scope of the issue to be defined by the permission granted by HHJ Kline which concerns only the conclusion of arguable irrationality as closely defined and that there was no identified or other community need for affordable housing. Permission was not granted more generally. He relies upon the witness statement of Ian Stanners, which responds to the concerns of the learned judge and now provides an explanation of the relevant. Essentially his arguments are shortly made in this way:

Ground 3 may in fact also now be dealt with really very shortly, having regard to the evidence supplied by NCC since concern expressed by HHJ Kline when he gave permission. I consider this has answered Mr Williams concerns. Whilst it may be some concerns about the vague statements of expressions and interest the real facts in support of this case and the decision for “affordable housing” was made by the relevant department on the basis of which it had sufficient information and cannot, in my judgement, be considered irrational in the usual way. It is certainly not wrong in law as asserted.

When the Report and the Addendum are read fairly the emphasis, in my judgement, is on ‘need’ and, whilst the word ‘demand’ does appear, as I have hopefully fully and fairly cited above, I am satisfied that the thrust of the case has rightly proceeded on the needs in terms of rural development exception sites.

I acknowledge that the process has been evidence based, indeed, a robust approach is appropriate, but this is a problem which is well understood by the Housing Department. This particular neighbourhood is a sensitive area and has problems with affordable housing and, generally, they are well familiar with the clear neighbourhood problems as to second home owners and the need to find affordable housing for local people and, also, the importance of such a social policy, as made clear from the National Policy Framework which has special designation for rural exception sites. In my judgement Mr Stanner’s witness statement, together with the further documents but not only of Bernicia, do provide the appropriate support of evidence which satisfies me that the approach taken by NCC cannot be considered irrational on a public law basis and certainly not unlawful. Affordable housing has particular resonance for this area, as is apparent from the documents I have considered, and I am satisfied that sufficient weight has been placed on what appears to be an extensive knowledge of, not just well-known and trusted central housing association in this area, but also independent evidence. A decision was made on affordable housing and the planning application was therefore appropriate and permitted by NCC and there is no basis on which I consider this can be challenged.

I am satisfied that, whilst Ground 1 and Ground 3 were available to Mr Williams for argument, which he has, in the past and today, set out in an attractive and open way, on analysis, and with the assistance of the well-considered arguments of counsel for NCC; Simon Pickles, whose arguments as put I accept as correct, the view I have formed is that in this case I am not prepared to quash the Decision.