LAND AT JUBILEE LANE, MILTON UNDER WYCHWOOD

_____________________________

A D V I C E

_____________________________

1. My advice is sought on whether there is a reasonable prospect of successfully

challenging a recent appeal decision granting planning permission for the

erection of 9 dwellings on land off Jubilee Lane, Milton under Wychwood OX7

6JZ. The decision letter is dated 29 June 2018 and any application for

permission to challenge the decision would have to be made within 6 weeks

of this date.

2. The only means by which the validity of a planning appeal decision may be

questioned is through an application to the High Court under section 288 of

the Town and Country Planning Act 1990. Before a claim can proceed under

this section, the permission of the Court is required and such permission is

only granted if there is an arguable error of law in the decision.

3. Error of law in this context means one of the following:

(i) Breach of a relevant statutory duty;

1

(ii) Failing to take into account a material consideration or leaving a

material consideration out of account;

(iii) Acting on no evidence or making a material mistake of fact;

(iv) Failing to give proper, adequate or intelligible reasons for the decision

made; and

(v) Reaching a decision which no reasonable decision maker properly

directing themselves could reasonably have reached in the

circumstances.

4. It is important to note that the High Court will not entertain criticisms that an

inspector has given too much or too little weight to a material consideration,

unless it can be shown that it was irrational to give the consideration the level

of weight accorded to it. In that case it would be an error in the final category

set out in paragraph 3 above. That is a very high bar and challenges on this

ground very rarely succeed.

5. On the issue of the quality of reasons (see para.3(iv) above), the best

exposition of the obligation on Inspectors in drafting decision letters remains

that set out in the speech of Lord Brown in South Bucks v Porter (No.2)

[2004] 1 WLR 1953:

“The reasons for a decision 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 any substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some

2

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 refer only 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 opponent 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 had genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

6. Challenges based on the adequacy of reasoning succeed only where the

Court is left in substantial doubt as to whether or not the decision was lawfully

made.

7. Within this context, I turn to the decision letter (“DL”) in this case.

The Decision Letter

8. From the Council’s reasons for refusal, in paragraph 4 of the DL (“DL4”) the

Inspector identified the following main issues:

- The effect of the development on the character and appearance of the

local area, including with regard to its location within the Cotswold Area

of Outstanding Natural Beauty;

- Whether the proposal provides an appropriate choice of homes;

- Whether appropriate provision is made for affordable housing.

9. I have seen nothing to suggest that this was anything other than an accurate

distillation of the main issues in the appeal raised by the material before the

3

Inspector. As is clear from DL48 to 54, the Inspector did not treat these as

the only issues; simply the main ones.

10. In the first substantive section of her reasoning (DL5 to 15), the Inspector

addresses the weight to be given to the adopted statutory development plan

policies. In doing so, it is clear that she was aware of and seeking to comply

with her statutory duty, to make the decision in accordance with the

development plan unless other material considerations indicated otherwise

(see the opening words of DL5). One such “other material consideration”, the

NPPF, is referred to and the fact that its content does not alter the statutory

status of the development plan is noted (DL6).

11. The adopted policies in this instance are the saved policies of the West

Oxfordshire Local Plan 2011 adopted in 2006. The Inspector notes (DL7) that

the plan period of this plan expired in 2011 and it failed to make any provision

for housing after that date. To that extent it was out of date. This formed part

of the context for the next section of her reasoning which was to consider in

relation to each policy referred to in the Council’s reasons for refusal, what

weight should be given to it. In this exercise she correctly applied paragraph

215 of the NPPF, asking whether the given policy was consistent with the

NPPF.

12. The decision on the weight to be given to each policy was a planning

judgment for the Inspector and, unless in reaching that judgment she

misunderstood the NPPF or the development plan policy or acted irrationally,

a Court will not interfere with it.

4

13. I have looked DL9 to 15 and, with one caveat, I can see no error in the

Inspector’s weighting of the various policies. Generally her conclusions were

favourable to those objecting to the appeal proposal (see her conclusions on

BE2, H2, BE4, NE3 and NE4). Where she has moderated the weight to be

given to the adopted policies, she has explained why and I can see no

obvious error in her conclusions. Policy NE1 which seeks to protect the

countryside for its own sake is given moderate weight because, whilst the

NPPF does apply a degree of protection to the countryside, it does not seek

to protect it for its own sake (DL11). Similarly, the weight accorded to H3 was

reduced because, whilst in principle consistent with the NPPF, the detail of

the policy was not (DL13).

14. It appears that the weight to be given to policy H6 of the adopted plan was the

most contentious policy issue between the parties. The Inspector concluded

that in broadly seeking to restrict housing development to infilling, rounding-off

within the existing built-up area and conversion of existing buildings, the policy

was not consistent with the NPPF which, she said “looks to support housing

where it will enhance or maintain the vitality of rural communities” (DL14). As

footnote 5 indicates, the inconsistency was said to be with paragraph 55 of

the NPPF.

15. However, that seems to me to be applying a too narrow and erroneous

approach to the NPPF. The NPPF must be read and applied as a whole and

also requires local planning authorities to “actively manage patterns of growth

to make the fullest possible use of public transport, walking and cycling.....”

(paragraph 11). Settlement hierarchy policies which allow for appropriate

5

growth in settlements having regard to wider sustainability considerations, are

not inherently inconsistent with paragraph 55 of the NPPF. Whilst that

paragraph may encourage rural development to support the vitality of rural

communities, it certainly does not advocate unrestricted growth in rural areas.

16. All of that said, I do not consider the Inspector’s error was a material one for

two reasons. Firstly, the reason she ultimately gave limited weight to policy

H6 was that it related to the supply of housing.1 This must be read in the

context of paragraph 7 of the DL in which she points out that the Local Plan is

time expired in terms of its housing policies. Policies such as H6, which were

drawn up in the context of identified need within a now expired plan period,

are inevitably out of date and there was no need for the Inspector to reach a

finding on the adequacy of the five year land supply in order to support that

conclusion.2 The Council’s attempt to argue otherwise (on the ground that the

policy should be regarded as a design policy) was, in my view, always

doomed to fail. The policy is self-evidently not a design policy.

17. Secondly, although not expressly addressing the policy later in her decision, it

is clear that she concluded that it was complied with in any event. I will return

to that separate point in due course.

18. The final policy accorded less than full weight is policy H11 which is not

consistent with the Written Ministerial Statement (“the WMS”) given its

threshold for requiring the provision of affordable housing and, on that basis,

the Inspector gave it limited weight. The policy was adopted in 2006, well

1 She did not conclude that the policy was a “relevant policy for the supply of housing” for the purposes of paragraph 49 of the NPPF. She simply noted that it “related to the supply of housing”, which is correct.2 Ibid

6

before the WMS, and no local departure from it has yet been sanctioned

through the adoption of a new local plan. In that context, the Inspector’s

conclusion was open to her as a matter of judgment.

19. The Inspector’s sequence of reasoning then moved to the emerging Local

Plan. Given that she was not provided with details of the outstanding

objections to the relevant policies (DL17) and that the policies are still being

examined (albeit the examination is at a very advanced stage), her conclusion

that only moderate weight could be given to them was one reasonably open to

her. In any event, I have seen nothing to suggest that the approach of the

emerging policies relevant to the main issues differed materially from the

approach of the adopted Local Plan.

20. The Inspector then moves to the first main issue, the character and

appearance of the area (DL19 to 37). She concluded that the appeal site was

part of a valued landscape given it lies within the AONB (DL21) but also,

following an assessment of its surroundings, that it lies within “the natural

edge of the settlement”. The appeal proposal would, she concluded, extend

the existing built up form but in a way which rounded off the settlement (DL22)

and, whilst the resulting layout was atypical, it was not harmful (DL23).

21. Whilst others might disagree with each of those judgements, they were

judgments which were open to her to reach having regard, in particular, to

what she observed on her site visit. Her findings in this respect effectively led

to the conclusion that the proposal complied with H6, which is then consistent

with DL54 in which the Inspector states that has found the proposed

7

development to be acceptable when assessed against the policies of the

development plan.

22. In reaching this apparent conclusion, it is not obvious that the Inspector was

aware that the term “Rounding off” is defined in the Local Plan for the

purposes of policies H6 and H7. That definition is in the following terms:

“Rounding off is defined as residential development on a site within the existing built-up areas of a settlement that would be a logical complement to the existing pattern of development, would not extend the settlement into open countryside and would not conflict with other policies of this Plan. Such sites will be previously developed land which is or was occupied by a permanent structure, including the associate curtilage”.

23. The Inspector’s findings would support the conclusion that the first sentence

of this definition was met but the second was not. This has not been taken

into account by the Inspector and that is an error of law.3 However, the issue

which the Court would be concerned with is whether it was one which would

have made any difference to the overall outcome. Had the Inspector applied

the definition correctly, she would have concluded that the development did

not comply with policy H6. However, in substance she found that the appeal

proposal would be a logical complement to the existing pattern of

development and would read as development within it rather than in the

countryside.

24. The objectives of policy H6 were therefore in part met and the only non-

compliance was status of the site as Greenfield rather the previously

3 Misapplying development plan policy leads to a breach of section 38(6) of the Planning and Compulsory Purchase Act 2004 to decide an application in accordance with the development plan unless material considerations indicate otherwise and also amounts to a failure to take a material consideration into account.

8

developed land. Given her findings that the development complied with the

majority of the other principally relevant policies, it seems to me that it would

be implausible to suggest that, had she correctly applied H6 and in

consequence, concluded that the appeal proposal did not accord with the

development plan as a whole, the outcome would have been affected. The

Inspector had already concluded that the Local Plan made no provision for

housing after 2011 and that policy H6 was out of date. Given the absence of

any identified harm and with clear benefits (see below), even if she had

concluded that the development did not comply with the development plan,

there is no doubt in my mind that she would have concluded that this was

outweighed by the benefits of the appeal proposal. Looking at her clear

conclusions on the visual benefits of the appeal proposal, the fact that the site

was greenfield rather than brownfield land would not have led her to dismiss

the appeal.

25. In terms of the benefits, the Inspector concluded that there would be benefits

in terms of added variety (DL24) and the significant softening the appeal

proposal would be capable of delivering to this edge of the village (DL33 and

34). Whilst therefore the character of the site itself would change (DL29), it

was not an important site in terms of local distinctiveness (DL35) and the

overall effect was acceptable in terms of the relevant policies (DL37). These

were all planning judgements for her. The Inspector was entitled to use her

own observations made on site to make these findings and I can see no

ground upon which the Court would interfere with them.

9

26. Before moving on, I should address the issue of the AONB and the NPPF. In

paragraph 26 of her decision letter, the Inspector notes that by reason of the

number of proposed dwellings “it is not defined as ‘major’ development”. It is

not clear what definition she was referring to, as neither the NPPF nor Local

Plan provides a definition. If she was referring to the Town and Country

Planning (Development Management Procedure) Order 2015, and its

definition, then she was wrong to do so. The Courts have held that this

definition is not relevant to the interpretation of the NPPF (see Aston v

SSCLG [2013] EWHC 1936 (Admin) and R(The Forge Field Society) v

Sevenoaks District Council [2014] EWHC 1895).

27. Instead the word “major” should be given its ordinary meaning and whether a

development is major or not is a matter of planning judgment which will

depend on the particular facts of each case. I would note in this context that it

does not appear from the content of the decision letter that the Council was

arguing that the development was major and, therefore, the issue was not a

principal controversial one in any event.

28. It may be that the Inspector’s language was an infelicity and she meant only

to say that, in her view, the appeal proposal was not major development.

However, if not and even if there is an error here, I cannot see that it is one

which affected the outcome of the appeal. This was not a proposal which had

the potential to have a serious impact on the AONB by reason of its nature

and scale having regard to its local context. The Inspector concluded that in

her view, the proposal was one which would enhance the AONB. In that

context, taken with the small size of the scheme, even had she correctly

10

applied her mind to whether the development was “major”, there was only

conclusion open to her (it was not major) and a Court would find that her

conclusion would have been the same. Therefore, it would either refuse

permission to bring the claim or, if permission were to be granted, refuse to

quash it.

29. Moving on to the mix of house types and affordable housing dealt with by the

Inspector in DL 38-43, these were matters of judgement for her and her

conclusions flow in part from her earlier findings on the weight to be given to

the relevant development plan policies. I see no error here.

30. That leaves the Inspector’s consideration of other matters. In terms of need,

she concludes there is a national need for housing and, in effect, that even if

local targets are being met, that does not stand in the way of otherwise

acceptable development (DL51). That is a correct approach; the absence of

need does not amount to a reason for refusal of an otherwise acceptable

development.

31. As to the use of the site for informal recreation, she gives this little weight

because the appeal site is “not formally defined as open space or recreational

space”. It is not entirely clear what she means by use of the term “defined”. I

assume that she meant not shown for such use on the Local Plan proposals

map and that this was factually correct. Of itself, that did not entitle the

Inspector to give little weight to any informal use value. A site may be locally

very valuable for recreational purposes and yet have no express designation.

Indeed policy BE4 of the Local Plan expressly recognises this. Whilst the

11

absence of a specific designation may reduce the weight to be accorded to its

value; reduced weight does not necessarily mean little residual weight.

32. However, here the absence of specific recognition of value was coupled with

the absence of any evidence that the recreational use was permitted by the

landowner. In those circumstances, giving that use little weight, was not

unreasonable. Reading the decision as a whole, once again although the

reasoning could have been better and differently expressed, there is nothing

which would persuade a Court to quash the decision, particularly as the

Inspector concluded that site would still continue to perform its role as a

gateway to the countryside.

33. In terms of highway access, infrastructure capacity, outlook, privacy, flood risk

and biodiversity (DL 52-53), the Inspector simply acted on the evidence

before her. I can see no error on any of those issues.

34. The final matter I need to turn to is not referred to the DL. This is the

preliminary conclusion of the Inspector undertaking the independent

examination into the emerging West Oxfordshire Local Plan, that there should

be no site allocations for the Burford – Charlbury sub-area given (a) that it lies

within the AONB and (b) the level of already committed housing. It is not

clear to me whether this document was in fact provided to the appeal

Inspector, but even if it was, the absence of reference to it is not, in my view,

an error of law. The Examination Inspector is careful in his preliminary

conclusions to stress that his recommendation that all allocations in this area

should be deleted does not mean that there should be no further housing

development within it. What he decided was that:

12

“...soundly based decisions on the balance of the benefits and harms of further housing development in this area can only reasonably be reached based on the detailed evidence submitted as part of specific planning applications”.

35. Whilst the appeal Inspector’s views and judgements may not be shared by the

Parish Council and others, her decision flowed from a balance of the kind

anticipated by her colleague.

Conclusion

36. There are some errors/minor infelicities in the DL but there is nothing here

which, in my view, would persuade the High Court to grant permission to bring

a claim under section 288 of the 1990 Act. The Court would conclude that the

errors were not such that they could have had any bearing on the outcome of

the appeal.

SIMON BIRD QC16 July 2018

Francis Taylor BuildingInner TempleLondonEC4Y 7BY

DX: 402 4DE

13

LAND AT JUBILEE LANE, MILTON UNDER WYCHWOOD

_____________________________

A D V I C E

_____________________________