New Thames Crossing Decision Should Shape Strategic Growth Options in Thames Gateway

Announced today by DoT – majority of consul tees backed this option however Thurrock hates it.

What this route does it redefine the natural boundaries of Grays and Gravesend.  The A13 for example is no longer the obvious northern limit of Grays,  Within these areas north of Ockendon, West of Gravesend and West Tilbury offer options free of flood risk and on rail lines for potential Transit Orientated Development, where the Green Belt could be reviewed to the edge of the new road to provide a strategic long term reserve of land.

This could help solve strategic planning decisions North and South of the Thames, North of the Thames some districts notably Castelpoint cannot meet all their needs within their boundaries, south of the Thames the Lodge Hill New Settlement looks a dodgy choice in the emerging Medway local plan because of the SPA designation and protected Nightingales.  Although Green Belt the Lower Thames Crossings sites I mentioned are a much better environmental choice, Green Belt and not Brownfield but much less environmentally damaging and outside the flood affected areas to the East and nearer the Thames.  What is lacking is a coherent strategy for the lower Thames Gateway, between London and Castelpoint and Medway (the Thanet and Southend can await to solutions for the towns between themselves and London – its a phase two).  The old strategy is 20 years out of date and not particularly spatial as many of the key decisions on matters such as Crossrail and the Lower Thames Crossing were put off till now – will the National Infrastructure Commission fill the void as they are doing in the Arc?

Legal Challenge to Revised Discriminatory Definition of Travellers

Travellers Times

Community Law Partnership are challenging a highly controversial new planning definition on behalf of a Gypsy woman in a battle that could lead to the High Courts.

In August 2015 the Secretary of State for Communities and Local Government changed the definition of the so-called ‘gypsy status’ required by applicants wishing to develop Traveller sites. From that date those Gypsies and Travellers who have had to stop travelling permanently due to age or ill health have been excluded from the ‘gypsy status’ and are no longer allowed to develop Traveller sites under the Planning Policy For Traveller Sites government planning rules.

The new definition has also cast into doubt the future of many ‘settled’ Gypsies and Travellers currently living on Traveller sites. Many council Gypsy and Traveller Accommodation assessments – which count the number of Gypsies and Travellers in their area so councils can plan for more sites -have been drastically reduced because of the new definition.

“We have been arguing since then that the definition is discriminatory, prejudicial, unreasonable and disproportionate especially as regards those Gypsies and Travellers who are old, disabled, in serious ill health or caring for others,” said the lawyers for Mrs Nun.

The case has been running for some time as initially Mrs Nun was refused legal aid to make the challenge. However, CLP successfully challenged the decision by the Legal Aid Agency not to give legal aid to Mrs Nun by way of a Judicial Review – and got legal aid to do so.

The new definition sparked a protest and a petition to the government by Gypsy and Traveller campaigners which was covered in the November 2016 issue of the Travellers’ Times Magazine.

The new definition has also been condemned by the equalities and human rights watchdog.

The Equalities and Human Rights Commission made submissions to the Government saying that the new law did not adequately consider the rights of Gypsies and Travellers. It argued that the most vulnerable are likely to be worst affected – particularly parents who do not want their children’s education interrupted by moving around and older people who are too unwell to travel.

A spokesman for the Commission said: “We have written to the Government to explain the position under international law. This sets-out that Gypsies are not Gypsies merely because they travel. Membership of that group is also both a question of ethnicity and cultural identity, which includes ethnic minorities such as Romani Gypsies and Irish Travellers.”

The Welsh Assembly refused to adopt the new definition and still uses the old ‘gypsy status’ which allows Gypsies and Travellers to stop travelling permanently for health and educational reasons.

The Community Law Partnership is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT) – a ground-breaking nationwide 24 hour advice service for Gypsies and Travellers.

The Yapton Case – when Neighbourhood Plan made but lack of 5 year Supply

Best Summary yet on current complex caselaw

Ballilaw

Grounds 1 and 2: Misinterpretation and misapplication of the NPPF

 

  • In Grounds 1 and 2, the Claimant submitted that the Secretary of State misinterpreted and misapplied the NPPF. The specific criticisms were that the Secretary of State erred:

 

i) in DL 13, by stating that the provisions of NPPF 14 should be used as part of the assessment of whether the development was sustainable;

ii) in DL 36, when he relied on the fact that the development conflicted with policy BB1 of the YNP to conclude that it did not comply with the “social element of sustainability“;

iii) by misinterpreting the meaning of NPPF 198;

iv) when undertaking the balancing exercise, because he primarily had regard to NPPF 198 and in doing so failed to have regard to the NPPF as a whole and in particular the importance of increasing the supply of housing in NPPF 49 and 47 (see St Albans City and District Council v Hunston Properties [2013] EWCA Civ 1610; Solihull MBC v Gallagher Estates Ltd [2014] EWCA Civ 1610, at [14]–[16]; and Woodcock Holdings Limited v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin), at [92] – [95]).

 

  • Under NPPF 47, in order to boost the supply of housing, local planning authorities must identify a supply of sites for housing sufficient to provide five years supply of housing against their housing requirements, with an appropriate buffer.
  • NPPF 49 states:

 

“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.” 

  • NPPF 14 provides (so far as is material):

 

“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 decision-taking this means [unless material considerations indicate otherwise]:

  • 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.” [Examples are set out in FN 9].

 

  • I accept the Secretary of State’s submissions that the Claimant’s criticisms lacked merit. In my judgment, his decision did not disclose any misinterpretation or misapplication of the NPPF.
  • Before the Inspector and the Secretary of State, it was not in dispute that the Council was unable to demonstrate a five year supply of housing. Therefore NPPF 49 applied, and policies for the supply of housing were deemed to be out-of-date. In consequence, the weighted balance in the second limb of NPPF 14 applied, which guided the decision-maker to grant planning permission “unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole“.
  • The Inspector, at IR 11.5, adopted a two stage approach saying “In the event that it is found the proposals amount to sustainable development, the tilted balance in NPPF 14 would apply ….“. At the time he wrote his Report, this approach was widely adopted, perhaps in response to the decisions of this Court at that time. Patterson J. said in Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin); [2015] 1 P & CR 2:

 

“54 …. When the decision letter is read as a whole it is clear that the Inspector reached an overall conclusion, having evaluated the three aspects of sustainable development, that the positive attributes of the development outweighed the negative. That is what is required to reach an eventual judgment on the sustainability of the development proposal. As was recognised in the case of William Davis (supra) at para.38 the ultimate decision on sustainability is one of planning judgment. There is nothing in NPPF, whether at para.7 or para.14 which sets out a sequential approach of the sort that Mr Whale, on behalf of the Claimant, seeks to read into the judgment of Lang J at para.37. I agree with Lang J in her conclusion that it would be contrary to the fundamental principles of the NPPF if the presumption in favour of development, in para.14, applied equally to sustainable and non-sustainable development. To do so would make a nonsense of Government policy on sustainable development.” 

  • A two stage approach was criticised by Jay J in Cheshire East BC v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PTSR 1052, at [25]:

 

“Nor do I believe that it is necessarily helpful to say that paragraph 14 does not apply to development which is not sustainable. If, having applied the paragraph 14 algorithm, that is the conclusion which is reached, I have no difficult with this formulation. However, a decision maker will only know if a proposal is sustainable or not by obeying the processes mandated by the paragraph. An integral part of the process is a positive weighting in favour of sustainable development in the sense that the proposal will be assessed as such unless the planning harm clearly and significantly outweighs the planning gain.” 

  • Jay J’s approach was followed in East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin) and Barker Mill Estates Trustees v Test Valley BC[2016] EWHC 3028 (Admin).
  • At DL 13, the Secretary of State said:

 

“He notes the Inspector’s conclusions at IR11.5 but does not agree with his interpretation. In considering the provisions of paragraph 14 of the Framework he concluded that the paragraph should be used as part of the assessment of whether the development is sustainable.” 

  • I agree with Mr Whale’s submission that DL 13 reflected the current prevailing interpretation of NPPF 14, and that the Secretary of State’s disagreement with the Inspector’s interpretation was supported by recent authorities.
  • I also agree with Mr Whale’s submission that when the Secretary of State was applying the weighted presumption in the second limb of NPPF 14, he was entitled, and indeed required, to take into account relevant policies in other parts of the NPPF because NPPF 14 expressly requires the decision-maker to assess whether the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits “when assessed against the policies in the Framework taken as a whole” (emphasis added). Relevant policies in this case included policies on sustainable development (see NPPF 6 – 10 under the heading “Achieving sustainable development” and NPPF 18 to 219 on delivering sustainable development) and policies on neighbourhood plans (see NPPF 183 – 185 and 198), as well as policies to boost the supply of housing (see NPPF 47 and 49).
  • Mr Whale’s submission was in accordance with the judgment of Lindblom J. (as he then was) in Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin) where he said:

 

“73 The reference in paragraph 14 of the NPPF to its policies being “taken as a whole” is important. It indicates that the decision-maker is required, when applying the presumption in favour of “sustainable development”, to consider every relevant policy in the NPPF. As paragraph 6 of the NPPF says, the policies in paragraphs 18 to 219, “taken as a whole”, constitute the Government’s view of what “sustainable development” means in practice for the planning system. Those 202 paragraphs include the policy on neighbourhood plans in paragraphs 183 to 185, and the policy on determining applications where there is conflict with an extant neighbourhood plan, in paragraph 198. There is no justification for excluding those four paragraphs from the ambit of potentially relevant policy on “sustainable development” in the NPPF. In this case they clearly were relevant.

74 I do not accept the proposition that, in a case where relevant policies for the supply of housing are out of date, the weighing of “any adverse impacts” against “the benefits” under paragraph 14 should proceed – as Mr Hill put it in paragraph 71 of his skeleton argument – “on the basis that the development plan components have been assessed, put to one side, and the balancing act takes place purely within the text of [the NPPF] as a whole”. Paragraph 14 of the NPPF does not say that where “relevant policies” in the development plan are out of date, the plan must therefore be ignored. It does not prevent a decision-maker from giving as much weight as he judges to be right to a proposal’s conflict with the strategy in the plan, or, in the case of a neighbourhood plan, the “vision” (as it is described in paragraph 183). It does not remove the general presumption in paragraph 198 against planning permission being granted for development which is in conflict with a neighbourhood plan that has come into effect. These are all matters for the decision-maker’s judgment, within Wednesbury bounds.

75 In this case the Secretary of State did what paragraph 14 of the NPPF required him to do. In paragraphs 18 and 19 of his decision letter, and then in paragraphs 23 to 26, he balanced the competing considerations. He weighed the “adverse effects” of the proposal against its “benefits”, in the light of the policies in the NPPF “taken as a whole” – including both its policy on housing supply and its policies on neighbourhood planning (paragraph 18). On the “benefits” side of the balance he gave “substantial weight” to the ability of the proposed development to “assist in addressing the housing land supply shortfall” (paragraphs 19 and 23). There is no complaint about that conclusion. On the “any adverse impacts” side of the balance he gave “very substantial negative weight” to the conflict between the appeal proposal and the neighbourhood plan (paragraph 19), even though this plan was “currently out of date in terms of housing land supply ahead of its review in 2018” (paragraph 25). He acknowledged what the inspector had said in paragraphs 43 to 49 of his report, including the inspector’s conclusion that the “housing land supply elements” of the then emerging neighbourhood plan attracted only “moderate weight” (paragraph 19). However, given that the neighbourhood plan had now been brought into force, he considered the proposal’s conflict with that plan under the policy in paragraphs 183 to 185 and 198 of the NPPF (paragraph 19). He was entitled – indeed, required – to do that. The presumption in paragraph 198 was a consideration to which he was entitled to give significant weight. And he clearly did. He attached great importance to the concept, in paragraph 185 of the NPPF, that “neighbourhood plans will be able to shape and direct sustainable development in their area”. In his view, as he said, this was “more than a statement of aspiration” (paragraph 19). He explained what he meant by this in the penultimate sentence of paragraph 19: that once a neighbourhood plan has become part of a development plan it “should be upheld as an effective means to shape and direct development in the neighbourhood planning area in question, for example to ensure that the best located sites are developed”. This reasoning led to the conclusion that the proposal’s conflict with the neighbourhood plan had to be given “very substantial negative weight” – which was enough weight “significantly and demonstrably” to outbalance the benefit of the additional housing proposed (paragraph 26).” 

  • PPG paragraph 83 also advises that, in applying the second limb of NPPF 14, when assessing the adverse impacts of the proposal against the policies in the Framework as a whole, under the second limb of NPPF 14, “decision makers should include within their assessment those policies in the Framework that deal with neighbourhood planning. This includes paragraphs 183–185 of the Framework; and paragraph 198 which states that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted“. The Secretary of State’s approach conformed with this guidance.
  • The Claimant submitted that the Secretary of State misunderstood and misapplied the NPPF when he concluded in DL 36 that the development proposal did not comply with “the social element of sustainability” because of its conflict with the YNP and neighbourhood plan policies in the NPPF. The Claimant submitted that NPPF 7 (second bullet point) comprehensively explained the nature of the social element of sustainability and it did not include neighbourhood plans.
  • NPPF 7 provides (so far as is material):

 

“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:

…..

a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of the 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;

…..” 

  • In my judgment, the Claimant’s interpretation of the social element of sustainable development was too narrow. NPPF 7 bullet point 2 describes aspects of the social element of sustainable development; it does not exhaustively describe or define it.
  • The established definition of sustainable development, set out in the NPPF under the heading “Achieving sustainable development” is broad in scope:

 

“International and national bodies have set out broad principles of sustainable development. Resolution 42/187 of the United Nations General Assembly defined sustainable development as meeting the needs of the present without compromising the ability of future generations to meet their own needs. The UK Sustainable Development Strategy Securing the Future set out five ‘guiding principles’ of sustainable development: living within the planet’s environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly,”

 

  • The principles of “a strong, healthy and just society” and “promoting good governance” are part of the social element of sustainable development, as commonly understood i.e. the ability of a society to function effectively. These principles are sufficiently broad to encompass the NPPF policies for a system of planning within which “local people and their accountable councils can produce their own distinctive local and neighbourhood plans, which reflect the needs and priorities of their communities” (NPPF 1) and the notion of “empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area” (NPPF 17).

  • NPPF 6 explains that the policies in paragraphs 18 to 219, taken as a whole, constitute the Government’s view of what sustainable development means in practice for the planning system. This clearly includes NPPF 183 – 185 and 198.

  • I agree with paragraph 73 of Lindblom J.’s judgment in Crane, where he said that there was no justification for excluding NPPF policies on neighbourhood plans “from the ambit of potentially relevant policy on “sustainable development” in the NPPF“.

  • The Claimant also added a submission which was not pleaded in its grounds, namely, that the Secretary of State misapplied NPPF 198 (which provides that planning permission should not normally be granted if it conflicts with a neighbourhood plan), by not appreciating that the general rule was qualified. I cannot accept this submission. No part of the DL suggests that the Secretary of State made such a careless error in his reading of the paragraph. The Secretary of State weighed the neighbourhood plan in the balancing exercise required under the second limb of NPPF 14; he did not simply refuse planning permission on the basis that the development conflicted with the neighbourhood plan without applying the appropriate test and without proper consideration of the factors in favour of the grant of permission.

  • There was some debate before me as to the interplay between NPPF 196 and 198. In my judgment, the general statement of law in NPPF 196 applies equally to all parts of the development plan, including neighbourhood plans. NPPF 198 does not give “enhanced status to neighbourhood plans as compared with other statutory development plans” (per Holgate J., in Woodcock Holdings, at [24], approved by Lindblom LJ in DLA Delivery Ltd at [11]). Nor does NPPF 198 merely re-state NPPF 196 insofar as it relates to neighbourhood plans – that would be pointless repetition. Under the heading “Determining applications“, the NPPF reiterates to the decision-maker some of the key principles and policies set out earlier in the NPPF which should be applied when determining an application. NPPF 196 re-states the statutory framework within which decisions must be taken. NPPF 197 reminds the decision-maker to apply the presumption in favour of sustainable development. NPPF 198 reiterates to the decision-maker the importance of the role accorded to neighbourhood plans in the policies of the NPPF, in particular at NPPF 17 and at 183 to 185.

  • I do not accept the Claimant’s submission that the Secretary of State failed to have regard to and apply relevant provisions in the NPPF other than those relating to neighbourhood plans. On a fair reading of the DL, the Secretary of State had regard to, and applied, the provisions in NPPF 7, 9, 14 and 49 in relation to sustainable development. The Secretary of State agreed with the Inspector that one of the main issues in the appeal was “whether the proposals would amount to sustainable development as set out in the …. NPPF” (DL 11 and IR 11.1). He expressly referred to sustainable development at DL 13, 18, 36 and 37. The Secretary of State also cross-referred to the passages in the Inspector’s Report on sustainability and NPPF 7, 14, 47 and 49 (at IR 11.3 to 11.5, 11.10 to 11.12, 11.16, 11.25, 11.36, 11.43 to 11.44, 11.48 and 11.55). The Secretary of State plainly had regard to NPPF policies to boost the supply of housing, as evidenced in DL 13, 16, 18, 19, 20, 29, 33 and 37. He also cross-referred to the Inspector’s Report on NPPF 47 (at IR 11.16 and 11.43). The Secretary of State sought additional representations from the parties on the Court of Appeal decision in Suffolk Coastal because of its analysis on the application of NPPF 14 and 49 where there was a shortfall in the five year supply of housing, thus demonstrating his appreciation of the central importance of this issue to this appeal.