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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Braintree District Council v Secretary of State for Housing Communities and Local Government [2021] EWHC 651 (QB) (18 March 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/651.html Cite as: [2021] EWHC 651 (QB) |
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CO/2012/2020 |
QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy Judge of the High Court)
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BRAINTREE DISTRICT COUNCIL |
Claimant |
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- and - |
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SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT |
Defendant |
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-and- |
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MR MARK NICHOLLS |
Interested Party |
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Heather Sargent (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented.
Hearing date: 10 November 2020
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Crown Copyright ©
Covid-19 Protocol: This judgment has been handed down by the judge remotely by circulation to the parties' representatives by way of e-mail, and by release to Bailii. The date and time for hand down will be deemed to be 2pm on Thursday, 18 March 2021.
Timothy Mould QC:
The claim
(1) The inspector misinterpreted policies RLP2 of the Local Plan and CS5 of the Core Strategy and their true effect in combination with the other relevant policies of the development plan.
(2) The inspector failed to give legally adequate reasons for concluding that the development to which the enforcement notice related was in accordance with the development plan.
(1) Contrary to section 250(5) of the Local Government Act 1972 ["the 1972 Act"], the inspector failed to specify in the costs order that part of the Interested Party's costs which the Claimant is required to pay.
The factual background
Relevant policies of the development plan
"New development will be confined to the areas within Town Development Boundaries and Village Envelopes. Outside these areas countryside policies will apply. Exceptions may be made to this policy for affordable housing schemes, which fully comply with the criteria set out in Policy RLP6. Housing sites with a capacity of 12 or more dwellings are shown on the Proposals Map and are listed in Appendix 1".
"Development will be severely restricted, unless it is necessary to support traditional land based activities such as agriculture or forestry, or leisure and recreation based uses, which require a countryside location and which contribute to rural economies and/or promote recreation in or enjoyment of the countryside. Development should be well related to existing patterns of development and of a scale, siting and design sympathetic to the rural landscape character".
"The area outside town development boundaries and village envelopes. Can include a number of small hamlets".
"There is a need for additional sites to meet the needs of gypsies and travellers in the District and in the East of England at present".
"The requirements will either be met by identifying sites and plots in the Sites Allocations Development Plan Document, or through development control decisions, when appropriate sites or plots come forward, which may include rural exception sites. Sites should be provided in sustainable locations, which are not at risk of flooding and have access to health, education and other community facilities. Funding for the provision of sites and plots may be sought as part of developer contributions".
"Provision will be made for a minimum of 50 authorised residential pitches for gypsies and travellers caravans by 2011 and a minimum of 67 authorised residential pitches by 2021. This will require an additional provision of 23 authorised pitches by 2011 and a further 17 authorised pitches by 2021.
"Provision will also be made for 5 transit pitches for gypsies and travellers by 2013 and a total of 6 transit pitches by 2021 and for a minimum of one additional plot for travelling showpeople (in addition to the existing provision) by 2021.
The Council will identify gypsy and traveller sites and a travelling showpersons plot, to meet this provision, in the Allocations DPD, or through the planning application process in accordance with the following criteria:-
- Sites should be well related to existing communities and located within reasonable distance of services and amenities such as shops, schools and medical facilities
- Sites should be located, designed and landscaped to minimise their impact on the environment
- Sites should have safe vehicular access to and from the public highway
- Sites should be located within areas not at risk of flooding
- Sites should be capable of being provided with drainage, water supply and other necessary utility services
- Sites should be of an appropriate size to provide the planned number of caravans, parking, turning and servicing of vehicles, amenity blocks, play areas, access roads and structural landscaping. In addition, the travelling showpersons plot should be large enough for the storage and maintenance of showpersons rides and equipment".
"6.22 The Core Strategy objectives relating to the rural area (which covers all of the District apart from the three main towns) are:-
Rural Area
To maintain and support services, community facilities and appropriate employment in the rural communities to meet their local needs.
Sustainability
To ensure that all development is sustainable and minimises the use of scarce natural resources and addresses the causes and potential impacts of climate change, encourages renewable energy, and promotes the development of previously developed land and urban regeneration to limit the extent of greenfield land required and concentrates new growth at the most sustainable locations. To ensure that development avoids flood risk areas and reduces future flood risk where possible. To prevent a deterioration in water quality and where possible to take measures to improve it.
6.23 Braintree District covers a large rural area, which contains nearly 50% of its residents. The Council supports protecting the countryside and maintaining the viability of agriculture, small businesses, farm diversification and rural tourism and seeks to expand rural enterprise in line with the recommendations of the Essex Rural Commission Report in 2009.
6.24 The scope for economic development will be limited by the need for sustainable development and to protect the countryside and environment. However, there is a need to secure a sound sustainable future for the rural economy, which continues to contribute significantly to the economy of the District as a whole through tourism, agriculture and local small businesses. Policies relating to farm diversification, rural enterprise and rural tourism will be set out in the Development Management DPD as well as details of uses, which are appropriate in the countryside. Employment sites will be identified within development boundaries in the Site Allocations DPD.
Main Issues
- Protecting the environment, landscape character and biodiversity of the countryside".
"Development outside town development boundaries, village envelopes and industrial development limits will be strictly controlled to uses appropriate to the countryside, in order to protect and enhance the landscape character and biodiversity, geodiversity and amenity of the countryside".
The inspector's decisions
"15. The parties agree that the site is situated in a rural area outside of any development boundary where, in general, residential and business uses are restricted by policy to being within particular parameters. This is clear from the planning history of the site. The main issue is therefore whether the development represents an acceptable form of development having regard to the following matters:
- the objectives of the development plan in respect of gypsy and traveller accommodation:
- the character and appearance of the area; and
- whether any harm arising from the above matters is outweighed by any other material considerations".
"Policy RLP2 of the LP states that new development will be confined to within town boundaries and village envelopes. Outside these areas, countryside policies will apply. Policy CS5 of the CS states that development will be strictly controlled to uses appropriate within the countryside. ELP Policy LLP1 maintains the Council's position set out in Policy RLP2. These policies were adopted before the publication of the National Planning Policy Framework (the Framework). The approach to development in these policies though is consistent with the Framework".
"23. Policy CS3 of the CS deals with gypsy and traveller development and sets out various criteria such as the requirement that the development should be well related to existing communities. Development should also be located within a reasonable distance of services such as shops, schools and medical facilities. Sites should also be designed to minimise their impact on the environment, have safe vehicular access, not be at risk from flooding, be capable of being provided with utilities and be appropriate in size. Although the definition of gypsies and travellers has changed since this policy was adopted, I find that it is consistent with national policy as contained in the Framework and [Planning Policy for Traveller Sites]. These state that applications should be assessed and determined in accordance with the presumption in favour of sustainable development. In addition, Councils should very strictly limit new traveller site development in the open countryside that is away from existing settlements".
"In all, I find no conflict with Policy CS3, in terms of the location of the site and the criteria set out in the policy. I therefore give this finding substantial weight".
"39. I have found no conflict with the development plan read as a whole. For decision taking this means approving development proposals that accord with the development plan. Within their submissions and at the Hearing the parties addressed other material considerations including the need for gypsy and traveller sites, personal circumstances, Human Rights and equality considerations. These are not matters that I need to address as I have concluded that the proposal accords with the development plan. The appeal on ground (a) therefore succeeds and the appeal on ground (g) does not need to be considered".
"45. For the reasons given above I conclude that the appeal should succeed on ground (a) and I will grant planning permission in accordance with the application deemed to have been made under section 177(5) of the 1990 Act as amended, which will now relate to the corrected allegation".
"2. The claim is made on several grounds. Primarily, it is submitted that the Council failed to carry out adequate prior investigations before the notice was issued. There was a failure to properly consider the planning circumstances which applied to Mr Nicholls and his family and to provide any consideration of the rights of a family. The Council's actions were hasty and were not reviewed when the appeal was made. In addition, the Council failed to support the reasons for issuing the notice at appeal, failed to respond to the appellant's grounds and introduced a new reason for opposing the development based on a Protected Lane policy.
3. The Council also cast aspersions on the integrity of Mr Nicholls' professional agent".
"9. The Planning Practice Guidance (the Guidance) advises that costs may only be awarded against the party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary expense all [sic] wasted expense in the appeal process".
"16. I find the Council's serious failings in this matter amount to unreasonable behaviour, which meant Mr Nicholls incurred wasted expense dealing with this point in the preparation of his appeal and at the Hearing. This could have been avoided and the notice would not have had to be corrected if the investigation had been more thorough".
"Conclusion
19. I therefore find that unreasonable behaviour resulting in unnecessary or wasted expense as described in the Guidance has been demonstrated and that a partial award of costs is justified.
Costs Order
20. In the exercise of the powers under section 250(5) of the Local Government Act 1972 and schedule 6 of the Town and Country Planning Act 1990, as amended, and all other enabling powers in that behalf, IT IS HEREBY ORDERED that Braintree District Council shall pay to Mr Nicholls the partial costs of the appeal proceedings described in the heading of this decision, such costs to be assessed in the senior courts costs office if not agreed".
Relevant legislation and legal principles
"(2) An appeal may be brought on any of the following grounds –
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the conditions or limitations concerned ought to be discharged.
…".
"(5) Where –
(a) an appeal against an enforcement notice is brought under section 174, and
(b) the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),
the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control".
"(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"(5) The Minister causing an inquiry to be held under this section may make orders as to the costs of the parties at the inquiry and as to the parties by whom such costs are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order".
"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it".
"18. …The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others…policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann)…".
"25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome…Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the planning inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local.…
26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two".
"36. The reasons must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".
The Claimant's submissions
Discussion
Disposal