Appeal by Barberry Droitwich Limited; and Persimmon Homes and

Prowting Projects Limited

Site at Land at Pulley Lane, Newlands Road and Primsland Way, Droitwich and Land North of Pulley Lane and Newland Lane, Droitwich

Appeal Refs: APP/H1840/A/13/2199085 and APP/H1840/A/13/2199426 Planning Application Refs: W/11/01073/OU and W/12/02336/OU

COSTS APPLICATION ON BEHALF OF

BARBERRY DROITWICH LIMITED

Introduction

  1. All references are to Circular 03/09 unless otherwise stated (‘the Circular’).
  1. Barberry Droitwich Limited (‘BDL’) accepts the usual position is that each party pays its own costs [A7]. However, as will be seen, the Local Planning Authority’s (‘LPA’) case at this appeal is very far from representing the ‘usual position’.
  1. When a costs application is justified the Circular encourages appellants to pursue substantiated applications for costs in a ‘robust but realistic way’ [A3, 8th indent].
  1. The preconditions in A12 are met
  1. this application is timely;
  1. The LPA has acted unreasonably; and
  1. the application is for costs of the Inquiry which should not have been necessary.

Unreasonable Behaviour

  1. The word has its usual meaning [A22]. The LPA has been professionally represented and advised by its officers [A23].
  1. Within the spirit of the encouragement of early disclosure of an intention to apply for costs set out in para A31, as early as 15 February 2013 BDLsent a letter to the LPA which set out its case for development in reliance upon Wychavon’s lack of a five year supply and the application of paragraphs 47 and 49 of the National Planning Policy Framework (‘NPPF’).[1] In that letter it warned that ‘Counsel has advised that a future Inspector is very likely to award costs against Wychavon District Council at an appeal.’ The letter had an opinion of Jeremy Cahill Q.C. appended to it. That opinion highlighted the significance of the Inspector’s decision at Honeybourne[2]. It highlighted that the Inspector had foundinter alia:
  1. Little weight could be attached to the SWDP as:
  2. it was not yet objectively tested (para.34);
  3. it used WSHMA figures ‘…to which unjustified adjustments have been made’ (para.34);
  4. Secretary of State decisions make clear that “tested” figures are important (para.34);
  5. there were no recent decisions where an Inspector had relied upon an emerging plan (para.35);
  6. reliance upon the SWDP contradicted the Planning System General Principles.
  1. The Inspector also found that the LPA’s Housing Land Supply was found wanting because:
  1. despite the requirement for prompt action in the “saving letter” there was still no 2004 Act compliant Development Plan;
  2. the Council itself supported a higher housing figure in its volunteered submission to the Panel in 2007 than it did in the emerging plan (para.29);
  3. the Council had not yet achieved the level of development it suggested in any year from 2006 onwards (para.30);
  4. it had failed to acknowledge a “step change” in housing land supply post PPS3 in 2006 (para.30);
  5. it had failed to respond to Planning for Growth (para.30); and
  6. it hadwrongly denied that relevant policies were out of date as a result of para 49 of the Framework (para.30).
  1. In calculating the 5 year supply the Inspector stated:
  1. He preferred the Sedgefield method of calculation (para.36);
  2. He decided that WDC should be regarded as an authority where a 20% buffer is appropriate (para.37);
  3. He regarded a blanket 10% deduction in respect of supply to be appropriate (para.39);
  4. He agreed that large windfalls should be excluded from the supply calculation (para.40);
  5. He regarded WDC’s figure for future small windfalls as excessive (para.41).

The LPA has not and cannot ‘explain why the relevant facts or matters referred to have not led to a change of stance or position’ [A23] despite the clear and stated intention of BDL to apply for costs.

  1. In this case the LPA’s unreasonable behaviour corresponds directly or indirectly with the following examples cited in the Circular:

B29The LPA ignored relevant national policy in making their decision. Particularly, paragraphs 14, 17-19, 49, 215 and 216 of the NPPF.

In so far as the LPA relied upon local policy to refuse the application (though it is noted that none were cited in the RRs) they failed to assess the consistency of those policies with that of the NPPF.[3]

The LPA acted and continues to act contrary to well-established case law. In relation to prematurity this was the High Court decisions in Stratford on Avon District Council v Secretary of State for Communities and Local Government[4] and Tewkesbury Borough Council v Secretary of State for Communities and Local Government and others[5]. In relation to the 5-year housing land supply this was the and us High Court (now Court of Appeal) decision in Hunston Properties Ltd v Secretary of State for DCLG and St Albans City and District Council[6]and the (unappealed) decision in Honeybourne which RR2 expressly contradicts in relation to the correct approach to 5 year land supply calculations[7].

B15 No development plan policy was cited in the reasons for refusal (‘RRs’). The LPA has clearly delayed development which should have been permitted given their own officer’s advice about the lack of a five year supply and the untenable case on prematurity

B16The RRs did not cite any local plan policies or indeed paragraphs from the NPPF. At inquiry, the LPA has sought to place ex post facto reliance upon development plan policies which did not form the basis of the RRs.

B18The LPA has relied upon vague, generalised and inaccurate assertions, particularly with regard to this proposal’s landscape impact. The officer’s report[8] advised members that the landscape impact was acceptable. The LPA’s evidence at the inquiry was founded to a substantial extent upon a misconceived reliance on a Landscape Character Area flowchart[9] which did not form any part of planning policy and was demonstrated to have been incorrectly applied in this instance. The inspector is asked to note that the same flow chart was not applied by the LPA at Copcut lane where land was subject to the same delegation.

B29In relation to Copcut Lane, the LPA has failed to treat like cases in a like manner. Little weight can be afforded to the Copcut allocation in an untested SWDP.

B20In this instance, the LPA did not accept the recommendation of their officer. In doing this they did not show reasonable planning grounds for taking a contrary decision and did not produce relevant evidence on appeal to support the decision in all respects. It was clear from the cross-examination of Cllrs Miller and Jennings[10] that the committee were prepared to turn down the application before it was discussed (having the RRs pre-prepared) and cynically chose RRs on the basis of the perceived ability to defend them rather than on the basis of sound planning reasons which related to this development.

A28The LPA has a duty to keep RR under active consideration where there has been a change in circumstances. Once the SWDP Inspector indicated that the plan required ‘substantially’ higher figures the prematurity argument became untenable because:

(a)additional housing sites would have to be released;

(b)in the existing and emerging development Plan, Droitwich Spa was a prime candidate to have such development;

(c)the SWDP authorities will not start looking for additional sites until the completion of phase 1 of the SWDP examination[11]. Thereafter, sites will have to be identified, consulted upon and presented for stage 2 examination.

(d)The combination of factors in (a)-(c) above renders the prematurity argument completely unarguable.

  1. At inquiry, it was made clear that the Planning Committee intended all of the RRs to be considered in the round and could not be relied upon individually[12]. Reason 1 depended upon prematurity which was at the time of the decision, and is now, clearly untenable and not a sound planning reason for refusing development. As stated above it ignores policy, case law and the officer’s recommendation. This, together with the fact that reliance on the SWDP to refuse development cannot stand given the conclusions of Inspector Clewes at the Interim Examination[13]. The second RR was based upon an erroneous assertion that the LPA could demonstrate a five year supply. This ran contrary to case law, officer’s advice and the decision of the Inspector at Honeybourne which clearly stated that Wychavon’s shortfall was to be dealt with using a Sedgefield approach.[14]
  1. The third RR relies upon a mixture of an unfounded prematurity argument, the false contention that the authority could demonstrate a 5-year supply together with landscape impact. The third of these was not supported by any local plan policies. The fourth reason now falls away due to the existence of a signed s106 agreement between BDL and the LPA.
  1. For all of the above reasons, this application is for a full award of costs.
  1. In the alternative a partial award of costs in respect of 5-year Housing Land Supply issues.
  1. Cllr Pearce’s evidence (IP7 p3 second complete para.) accepts the appropriateness of Sedgefield to calculate 5-year land supply.
  1. The council’s refusal therefore to withdraw reason for refusal 2 is illogical and unreasonable.

Jeremy Cahill Q.C

Victoria Hutton

No5 Chambers

14 February 2014

1

[1]See letter from M. Cartwright dated 15 February 2013 appended to this application.

[2]Inspector Harold Stephens, Land between Station Road and Dudley Road, Honeybourne, Worcestershire [APP/H1840/A/12/2171339] Core Document D13

[3]As required by 215 NPPF.

[4] [2013] EWHC 2074 (Admin), Core Document C2

[5] [2013] EWHC 286 (Admin), Core Document C3

[6] [2013] EWHC 2678 (Admin), Core Document C1 and [2013] EWCA Civ 1610 (Admin), Core Document C1a

[7]Inspector Harold Stephens, Land between Station Road and Dudley Road, Honeybourne, Worcestershire [APP/H1840/A/12/2171339] Core Document D13

[8] Core Document H1

[9] Sue Illman, Proof of Evidence, p16

[10]6 February 2014

[11]Cllr Jennings cross examination 6 February 2014.

[12]Cllr Jennings cross examination 6 February 2014.

[13] Malcom Brown, Proof of Evidence, Appendix 5

[14]Inspector Harold Stephens, Land between Station Road and Dudley Road, Honeybourne, Worcestershire [APP/H1840/A/12/2171339] Core Document D13