Development – Sequential test — Planning obligations – Inspector granting planning permission for development – Claimants applying to quash decision — Whether inspector applying sequential test incorrectly – Whether inspector properly taking account of planning obligations — Application dismissed
In July 2011, the second interested party (the developer) applied to the first claimant local authority for planning permission to demolish existing structures and erect a new food store and associated amenities on land in Shropshire. The first claimants failed to determine the application within the specified time which prompted the developer to appeal to the defendant secretary of state.
In March 2012, the first claimants resolved that, if they had acted in time, they would have refused planning permission in any event. Thereafter they opposed the developer’s appeal on putative grounds. They were supported by the second claimant, a company involved in the promotion of a competing site of which the first claimants were the owners. The plans board subsequently resolved to approve the competing site development. However that application had been called in by the defendant who had yet to determine it.
Meanwhile, the developer’s appeal in respect of its site proceeded to a planning inquiry, after which the inspector allowed its appeal and granted planning permission for the proposed development. The claimants brought an application under section 288 of the Town and Country Planning Act 1990 to quash that decision.
The claimants contended that the inspector had erred, among other things, by: (i) concluding that an alternative site closer to the town centre was not sequentially preferable to the application site, in accordance with the sequential test contained in the National Planning Policy Framework; (ii) failing to reach an express conclusion whether the alternative site could be discounted from consideration as not being available, suitable or viable; (iii) failing to acknowledge that national policy no longer contained a sequential greenfield/brownfield test at the time of her decision; and (iv) allowing the appeal having found that the planning obligations relating to the funding of off-site highway works did not comply with regulation 122 of the Community Infrastructure Regulations 2010 which limited the use of planning obligations.
Held: The application was dismissed.
(1) It was open to a decision maker to find that one or more sites were sequentially equal. There was nothing in the Framework or Practice Guidance relating to the sequential test precluding such an eventuality. Those responsible for applying the Practice Guidance were not constrained to interpret its provisions in a rigid, mechanistic fashion. If those responsible for drafting the Framework had considered it appropriate to discount the possibility of equivalence they could have done so. It was more in keeping with the nature of a policy, as opposed to a statute or subordinate legislation, for the decision maker to retain some level of flexibility.
There was no justification, all other things being equal, for interpreting a policy in a narrow, prescriptive sense unless such an interpretation was particularly compelling in any given case. A narrow construction was not apposite to the function of the inspector in the present case. Sequential superiority was not to be determined merely by measuring which of two competing sites was closer to the town centre as the crow flew. There were many permutations of factors which would justify a finding that one site was not discernibly sequentially superior to another. In such cases, the inspector was not expected to draw fine and potentially specious distinctions simply for the purpose of avoiding a “draw”.
In this case, the inspector had identified the proper approach to comparing two out of town sites with reference to the Framework and had undertaken a thorough review of their competing merits in that context. The clear focus of the sequential test was to prioritise the needs of town centres. The inspector was in the best position to assess the weight to be given to the relative accessibility of the respective sites and there was no legitimate basis on which to interfere with either her conclusions.
(2) The inspector had not been obliged to reach or express any final conclusion as to whether the alternative site could be discounted from consideration within the sequential test as not being available, suitable or viable. It was reasonable to proceed on the basis that, notwithstanding some misgivings, the inspector had treated the alternative site as complying with all three requirements, leaving the central issue whether or not the alternative site was sequentially superior. The finding that it was available, suitable and viable was a necessary, but not a sufficient basis, upon which to accord it sequential preference to the application site. The claimants had raised no arguments to impugn the reasonableness of the inspector’s conclusions.
(3) The inspector had not erred in assuming that the greenfield/brownfield issue formed part of the sequential test relating to the policy of promoting town centres. The inspector never recorded a conclusion to the effect that the alternative site was unsuitable merely that it was not sequentially superior. The context in which the inspector dealt with that point in her decision was not a sufficiently strong counter indication of the basis of the inspector’s approach to the greenfield/brownfield issue to persuade the court that she had fallen into error.
(4) Regulation 122 of the Community Infrastructure Regulations 2010 provided a limitation on use of planning obligations to inhibit developers from buying planning permission with the promise of wide ranging largesse. Pooled costs could, in appropriate cases, satisfy the requirements of regulation 122 but it did not follow that such costs were, in any given case, bound so to do.
In the present case, the inspector had looked at the planning obligation for payment of a highways contribution towards various off-site strategic works as presented to her and considered whether it was compliant with the 2010 regulations. Her stated concern was not that the pooling of costs was conceptually incompatible with the application of regulation 122 but that the costs did not reflect the reality of future proposed development. The inspector was entitled to discount the off-site highway works obligation as not fulfilling the regulatory requirements but still consider that the remaining merits of the application were sufficient to justify allowing the appeal: R (on the application of Pool) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin), R (on the application of Derwent Holdings Ltd) v Trafford Borough Council [2011] EWCA Civ 832; [2011] PLSCS 190 and Persimmon Homes North Midlands Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3931 (Admin) considered.
Ian Dove QC and Satnam Choongh (instructed by Wragge & Co LLP) appeared for the first claimants; Martin Kingston QC and Christopher Young (instructed by Wragge & Co LLP) appeared for the second claimant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the defendant; The first interested party did not appear and was not represented; Nathalie Lieven QC (instructed by Richard Max & Co) appeared for the second interested party.
Eileen O’Grady, barrister
