Chris Young and James Corbet Burcher Successful in s288 Challenge in Planning Court

Thu, 10 Aug 2017

In Verdin (t/a Darnhall Estate) v Secretary of State for Communities and Local Government [2017] EWHC 2079 (Admin), handed down by the Planning Court today, Robin Purchas QC (sitting as a Deputy High Court Judge) quashed the decision of the Secretary of State in Appeal Reference APP/A0665/A/14/2212671, Land Off Darnhall School Lane, Winsford, Cheshire. Chris Young and James Corbet Burcher appeared for the successful Claimant, Mr Verdin of the Darnhall Estate.

The Planning Court Judgment follows 4 years of site promotion work by the Darnhall Estate, its planning consultants, HOW Planning and other specialist advisers, to bring forward a residential scheme on the edge of Winsford in Cheshire West and Chester Borough Council.

The story of the Application and Appeal could be said to be characteristic of the tensions between “Delivery” and “Localism” today, and between the technical and political elements of the planning system. Permission was recommended by Officers and the Inspector (in two Reports). No technical or environmental objection was identified. Permission was refused by the Planning Committee and in due course the Secretary of State. Both placed considerable emphasis on non-allocation of the site within the emerging, and then ‘made’ Winsford neighbourhood plan for Winsford (covering only part of the Site).

The Appellant sought to provide a substantial package of local benefits, commensurate with the need for the regeneration of Winsford and this area of Cheshire West. It is this element that forms the key part of the Judgment, and advances the law on conditions in the present era.

The Appellant proposed several key amendments to the initial Appeal Scheme, to deliver local economic and social benefits, each to be secured by condition:

(1) Local Training and Employment: 50% Construction Workforce from the county of Cheshire; 20% Construction Workforce from Cheshire West Borough

(2) Local Builder Construction: Construction to be undertaken by firms with a registered office within Cheshire West Borough

(3) Local Procurement: 20% of gross construction costs

(A separate condition provided for Self-Build Housing across 10% of all plots)

The Inspector recommended a grant of planning permission in both Reports, placing weight on each of the above in his Second Report and finding the conditions met the national policy tests, and in totality amounted to substantial economic benefits.

In the Decision Letter, the Secretary of State refused permission, contrary to the Inspector’s recommendation. In doing so, the Secretary of State determined that each of the above conditions was not necessary to make the decision acceptable in planning terms, and breached various requirements of the criteria now listed under NPPF 203. In each case, very brief, repeated reasoning was used:

 

“(17) In the Secretary of State’s judgement, the condition entitled ‘Training and Employment’ would not be necessary to make the application acceptable in planning terms.  Though the requirements could be defined further in the Training and Management Plan, he considers that this condition as drafted is not sufficiently precise and would be difficult to enforce, partly because it would be difficult to detect a breach.

(19) In the Secretary of State’s judgement, the condition entitled ‘Local Builders’ would not be necessary to make the  development acceptable in planning terms and would not be strictly relevant to planning policy. Dependent on the builders or companies available through the build out of the development the condition would be difficult to enforce, neither would it be precise, or reasonable in all other respects, so cannot be imposed.

(20) In the Secretary of State’s judgement, the condition entitled ‘Local procurement’ would not be necessary to make the application acceptable in planning terms. Neither is it strictly related to planning.  The condition wold be difficult to enforce, in part because it could prove difficult to detect a breach.  The Secretary of State also considers that it is unclear what the position is in relation to the availability of businesses within the specified area to meet the criteria and therefore whether this condition would be reasonable in all other respects.

(21) For the reasons given in  paragraphs 16-20 above the Secretary of State finds these conditions would not satisfy all the relevant policy tests in paragraph 203 of the Framework and the Guidance and therefore should not be attached to any planning permission.  …”

On that basis, the Secretary of State reduced the weight accorded to the economic benefits of the scheme, in refusing permission.

The Claimant challenged the decision raising each of the above as ground of challenge (amongst other separate grounds).

The Judge upheld the claim on Grounds 2, 3 and 4: Local Training and Employment, Local Builder Construction and Procurement. It was held that the reasons provided for rejecting provided no rational explanation in key respects, including:

- Ground 2: the decision to reject the Training and Employment condition showed “absence of evidence of difficulty in enforcement or any objection on the grounds of lack of precision”. The decision was not consistent with the acceptance of similar conditions on other appeals and irrational. All this was “reinforced by the absence of any rational explanation to support the reasons submitted to this court”.

- Ground 3: the rejection of the Local Builder Construction condition demonstrated “no rational basis to say that it would not be practicably possible to enforce this condition or in practice impossible to detect a contravention of the condition” and there was no independent submission “independently to support the conclusions as to precision or reasonableness

- Ground 4: as to the rejection of the Procurement condition, there was no evidence that the Secretary of State “had any rational or cogent basis on which he could conclude here that there was a real prospect of that lack of availability so as to reject the condition on the basis that any Strategy that accorded with the condition would have been unreasonable”.

These collective errors were held sufficient to quash the permission: “each plainly material to the final decision”.

In the current era of planning policy innovation by the Secretary of State, it remains as important as ever for the delivery of substantial social and economic benefits to be recognised, including where offered through condition. 

Chris Young and James Corbet Burcher are members of the Planning & Environment Group at No5.

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