CO/3891/2016 
Neutral Citation Number: [2017] EWHC 594 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 28 February 2017
 
B e f o r e: 

MR JUSTICE OUSELEY 
 
Between:
 
THE QUEEN ON THE APPLICATION OF EMILY ROBB 
Claimant 
v 

SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL 
Defendant 
and

ACCENT NENE LTD 
Interested Party 
 
Computer‑Aided Transcript of the Stenograph Notes of  
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(Official Shorthand Writers to the Court) 
 
Mr A Parkinson (instructed by Richard Buxton) appeared on behalf of the Claimant

Mr A Bowes (instructed by South Cambridgeshire District Council) appeared on behalf of the Defendant

The Interested Party did not appear and was not represented
 
J U D G M E N T 
(Approved) 
Crown copyright©

1.	MR JUSTICE OUSELEY:  On 21 June 2016, the South Cambridgeshire District Council granted planning permission for the development of ten affordable houses on the edge of the village of Great Eversden in the Green Belt between that village and nearby Little Eversden.  The decision is challenged by a local resident.  It is fair to say that development on this site has been a matter of local controversy and previous litigation.  
2.	Relevant to the Council officers and members' consideration of the application is a policy in the adopted Development Control Policy DPD of July 2007.  Policy HG/5 deals with what it calls "Exceptions sites for affordable housing".  This is a policy which indubitably applied.  It reads:
i.	"1.  As an exception to the normal operation of the policies of this plan, planning permission may be granted for schemes of 100 per cent affordable housing designed to meet identified local housing needs on small sites within or adjoining villages.  The following criteria will all have to be met:

ii.	[The first two criteria relate to ensuring that the housing does meet those needs] 

iii.	(c) The site of the proposal is well related to the built‑up area of the settlement and the scale of the scheme is appropriate to the size and character of the village;

iv.	(d) The site is well related to facilities and services within the village; 

v.	(e) The development does not damage the character of the village or the rural landscape."

3.	I pause to note that that policy is of general application.  There are areas within South Cambridgeshire District Council to which it would apply but are not within the Green Belt.  
4.	Specific provision is made in the Green Belt in HG/5 paragraph 2 as follows:
i.	"2.  In the case of sites within the Cambridge Green Belt, before planning permission is granted for such development, the District Council will have to be assured that no alternative appropriate sites can be found for the scale and type of development proposed and that the scheme fulfils all the criteria set out in the Council's policies, including those relating to the impact of new development on local surroundings."

5.	Again, there is no dispute but that the criteria above in HG/5(1) are encompassed by that last passage in HG/5(2), including criterion (e). 
6.	The application was recommended for refusal by officers in a report of 14 January 2015.  It dealt with Green Belt policy by referring to the National Planning Policy Framework ("NPPF"), and then to HG/5.  The NPPF has a number of paragraphs related to the Green Belt.  Paragraph 80 sets out the purposes that are served by the inclusion of land within the Green Belt.  Paragraph 87 contains the well known provision that: 
i.	"Inappropriate development is by definition harmful to the Green Belt and should not be approved except in very special circumstances."

7.	Paragraph 88 provides that: 
i.	"Local planning authorities should ensure that substantial weight is given to any harm to the Green Belt.  'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."  

8.	Paragraph 89 is important here.  It provides that:
i.	"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

ii.	...

iii.	Limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan ..."

9.	Other exceptions include buildings for agriculture and forestry, to which there are no qualifications attached, and, for example, facilities for outdoor sport, which have the qualification added: 
i.	"As long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it".  

10.	I mention now, because it formed part of the argument, paragraph 90, which introduces such developments as mineral extraction with the words: 
i.	"Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt." 

11.	Returning to the officers' report, it dealt with the Green Belt in this way.  It pointed out in paragraph 34, under the heading "Principle of development/Green Belt", that the site was within the Green Belt, where the NPPF treated new buildings as inappropriate, but it then referred to the exception which I have just set out.  It then referred to policy HG/5, but not to the criteria listed or even their existence.  It described the site as being located adjacent to the village framework of Great Eversden and referred to the range of services and another irrelevant policy.  It also referred to supplementary planning development.  Essentially, all that was said about the Green Belt was said in the one paragraph, simply identifying the policy in the NPPF and the first part of the policy in HG/5.
12.	Need for development was then tackled, and I should mention this here in view of a ground which the claimant was bold enough to renew.  It refers to the need as a need occurring across both Great and Little Eversden.  There were no alternative sites.  However, when it came to the effect on heritage assets and landscape, the report clearly identified adverse impacts.  In the conclusions, the report said:
i.	"72.  In determining planning applications it is often necessary to balance competing factors.  In this case the identified need and public benefit of providing much needed affordable housing needs to be weighed against the harm to the Green Belt/landscape and adverse affect on the historic environment.  In addition, planning law requires the decision maker to have 'special regard' to the desirability of preserving the setting of listed buildings.

ii.	73.  Officers accept and understand the importance of delivering affordable housing especially when it is built out to meet the needs of a particular parish.  Nonetheless, and reluctantly, officers are of the view that the harm identified to the historic environment and landscape character are major concerns which outweigh the public benefit of providing the affordable housing."

13.	It recommended refusal for two reasons.  I summarise the first as being that the development would result in the permanent loss of open countryside and Green Belt, which forms an important gap between two groups of buildings in Great Eversden, and second, the development would be a form of development contrary to the prevailing form of the village and the loss of an important gap site, harming its landscape setting.
14.	The issue was debated in committee and members came to a different view.  The reasons they came to that view can be found in a minute of a later meeting, at which it is said:
i.	"Members agreed the reasons for approval were that the public benefits of providing affordable housing to meet a defined local need were sufficient to outweigh any harm to the permanent loss of open countryside and Green Belt, the landscape setting of the village, and the setting of surrounding listed buildings."

15.	Be it noted that neither the report nor reasons express any views about whether the relevant test is whether very special circumstances existed or not, or were met or not.
16.	The essential contention by Mr Parkinson on behalf of the claimant is that policy HG/5 should be read as a whole, and before permission was granted by reference to it all the criteria had to be complied with, a point clear from both paragraph 1 and paragraph 2 within the policy.  Where a proposal did not comply with one or more of the criteria, the development was outside the scope of that policy.  Here it is not in dispute but that criterion (e) was not met.  The officers' report explains in some detail why it was not met.  Members did not disagree with their appraisal of the damage to the heritage setting and landscape of the village, but simply took a different view of the balance to be struck between affordable housing needs and those other disadvantages. 
17.	Accordingly, submits Mr Parkinson, the policy not being met, when paragraph 89 of the NPPF comes to be considered, the proposal, albeit that it was for limited affordable housing for local community needs, was not a proposal "under policies set out in the Local Plan" because it did not comply with the relevant policy in the Local Plan for the provision of affordable housing.  "Under", put briefly, he submitted means "in accordance with" or "complying with". 
18.	If that be the correct reading, not merely would it follow ‑‑ and this is not in issue ‑‑ that the officers' report proceeded upon a misinterpretation of the NPPF, but it would also mean that the appropriate test should have been whether there were very special circumstances justifying the development, because it would have been inappropriate development in the Green Belt once it failed to comply with the provisions of the exception.  That much is clear from paragraph 89.
19.	The Council does not assert that it came to the decision it did based upon any appraisal as to whether very special circumstances existed or not.  Although there may be room for doubt about what the precise thought process was, the letter of 31 May 2016 from the defendant to the claimant makes it clear that the Council's position was that the development was not inappropriate development, and so it did not consider very special circumstances.  
20.	Although the precise basis of the Council's approach thus clarified is not, I think it not unjust to say, not immediately apparent from paragraph 34 of the officers' report, or indeed anywhere else within it, Mr Bowes for the Council submits that the correct approach to the interaction between HG/5 and the NPPF is as follows: the NPPF at 89 requires the Council to ask itself whether it has a policy for limited affordable housing for community needs.  If it does have such a policy, as Mr Bowes put it, recognising the principle of limited affordable housing needs to be met within the Green Belt, and thus "within", as he put it, meaning within the classification of such policies, the criteria in such policies did not fall to be considered for the purposes of assessing whether the development was appropriate or not.  All that needed to be focussed on was whether there was a policy for meeting needs, and not the precise criteria.  
21.	Mr Bowes submitted that that reflected the absence of qualification in the relevant bullet point in paragraph 89 of the NPPF, by way of contrast with the ways in which other exceptions in paragraph 89 were described and in which other development, in paragraph 90, that might also not be inappropriate was expressed.  What would happen is what happened here, which is that once the housing exceptions policy had been found to provide for the principle, the criteria could only then be considered in as ordinary development control criteria, and not as going to appropriateness of the development in the Green Belt.  In effect the policy, insofar as it purported to have criteria which would restrict the appropriateness of development in the Green Belt for affordable housing, would be contrary to the intention of the NPPF which provided no such constraints, and policies that did not deal with Green Belt issues were irrelevant to appropriateness in the Green Belt anyway.
22.	Accordingly, here the criteria were irrelevant to the decision as to whether the development was appropriate.  Of course, if that approach is correct, then the officers' report and the members' decision are perfectly explicable; they simply disagreed about the weight to be attached to the impact of the development.
23.	I cannot accept Mr Bowes's submission as to how the NPPF and this policy work.  First of all, the terms of the policy HG/5 are so clear that it is beyond argument that the appropriateness of limited affordable housing in the Green Belt only arises where the criteria are all met.  If any of the criteria are not met, then by the very terms of the policy, the development is not to be permitted, it is inappropriate development.
24.	Where the NPPF refers to exceptionally treating as appropriate limited affordable housing for local community needs "under policies set out in the Local Plan", it plainly intends that the relevant policy, here HG/5, should be properly complied with; that is, complied with according to its terms.  Its terms require compliance in full with the criteria.  Mr Bowes’s reading is something of a contortion of the text.
25.	I find it difficult, notwithstanding Mr Bowes's valiant endeavours, to see what "under" policies can mean other than "in accordance with".  There would be no reason to refer to the existence of some policy, but to treat it as shorn of any of the criteria, qualifications and restrictions which led to its being included in the Local Plan in the first place.  It would be very odd to leave that approach to the sort of implied reasoning Mr Bowes deployed.  It is plain that local authorities may have reasons why areas, specific or general, or criteria, of one sort or another, for restricting certain development for housing in certain areas or with certain impacts in the Green Belt, should be expressed and given effect.  The purpose of the reference to policies in the Local Plan is to reflect the fact that in dealing with local needs housing, local authorities are entitled to set the circumstances and criteria by which their provision in the Green Belt should be judged.
26.	Mr Parkinson helpfully drew my attention to the provisions of PPG 2, which includes as Annex E guidance that would have been in effect at the time the Local Plan was adopted, which in paragraph 14 says that the release of land for low cost housing schemes would be a matter for the judgment of the local planning authority, having regard to all material considerations, including the objectives of Green Belt policy and the evidence of local need.  It is quite clear that the Local Plan references are intended to bear some relationship to the fact that it is the Local Plan that will consider the relationship between the Green Belt and local affordable housing needs.  It would be very surprising not merely if the criteria of the Local Plan fell to be disregarded.  
27.	I was referred to paragraph 20 of the decision of the Court of Appeal in R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404, [2016] ENVR 30, in which in paragraphs 20 to 24 Lindblom LJ referred to the incongruity which would arise if development which was appropriate in the Green Belt could be refused because of its impact on the Green Belt, whether by virtue of inappropriateness, where there would be a direct contradiction, or by virtue of the harm it would do, where there would be a very strong risk that the intentions behind the policies relating to appropriateness would be negated.  
28.	In my judgment, the need to have regard to the criteria in the Local Plan policies is supported by the lacuna that would otherwise exist.  I do not regard that as being remedied by the possibility that those factors could come in under ordinary development control policies in relation to landscape and heritage, as if the land were not in the Green Belt.  The Green Belt policy has clearly been set such that development is not to be permitted unless those criteria are satisfied.
29.	Accordingly, it follows that the decision falls to be quashed.  
30.	In those circumstances, it is not necessary for me to say anything about ground 2, but I am afraid tempted by the point just to make this observation, lest it should be repeated in some other guise.  Ground 2 contends that on the proper construction of policy HG/5, the only relevant need is the need of the village adjacent to which the affordable housing site is to be found, here Great Eversden.  Therefore, submitted Mr Parkinson, the need of Little Eversden, which was lumped in, should have been disregarded, and, indeed, it follows that if that is the right approach, if the needs of Little Eversden are lumped in, very special circumstances would have to be shown, even if not otherwise.  The basis for that argument is as obscure to me as it was to Mr Robin Purchas QC sitting as Deputy High Court Judge, not a neophyte in this area, who regarded it as unarguable.  
31.	The application has been renewed with some boldness.  There is no provision at all in the terms of the policy which contains such a restriction.  Mr Parkinson relies on paragraph 418 in the explanatory text which says that in every case "the needs of the particular village are carefully surveyed and assessed by the Council before a scheme is progressed."  That, he says, means the needs of a particular village to which it is adjacent, and not the needs of one other village as well, which it may be very close to.  
32.	There is some supplementary planning guidance which says that "local need" is defined as identified needs in the individual village, or the local area it serves defined as the parish boundary.  Little Eversden and Great Eversden are indeed within different but adjoining parishes, but they share one Parish Council, but the guidance also recognises that there may be unusual circumstances where a village is on the edge of one parish and the site is in another.  That is not the only curiosity that may arise with the happenstance of administrative boundaries in relation to villages.  All would change with a boundary change, or parish amalgamation to reflect their single council.
33.	Nonetheless, with those references in hand, Mr Parkinson submitted that the needs of Little Eversden were irrelevant to the operation of the policy.  This is an argument that would have been well received in a tribunal dealing with a taxing statute or chancery litigation 100 years or so ago.  It is not an argument sensibly to be addressed on the meaning of policy in the 21st century.  It is perfectly obvious that a degree of common sense has to attend the understanding of these policies.  There is no common sense underlying that submission.  
34.	It is quite clear to my mind that the needs of Little and Great Eversden properly fall to be brought into account under the terms of the policy.  No doubt if the Council had understood the array of arguments that ingenuity could give rise to, they might have thought it appropriate to cover yet more possibilities, but in some circumstances they may rely on judges to take a slightly more robust view than would be required in a chancery or taxing matter.
35.	Nonetheless, I therefore refuse permission for that ground to be argued, but I quash the decision.
36.	MR PARKINSON:  My Lord, I'm very grateful.  I have an application for costs.
37.	MR JUSTICE OUSELEY:  Do I have a schedule?
38.	MR PARKINSON:  A schedule I can hand up.
39.	MR JUSTICE OUSELEY:  Have you seen the schedule, Mr Bowes?
40.	MR BOWES:  We received it at 5.30 yesterday evening, and I don't resist the principle, but do wish to make two short points about how it's dealt with, my Lord.
41.	MR JUSTICE OUSELEY:  All right.
42.	Yes.
43.	MR BOWES:  My Lord, the two short points are we don't resist the principle that the claimant is entitled to the costs.
44.	MR JUSTICE OUSELEY:  No.
45.	MR BOWES:  But we do wish to take some instructions on these costs.  Also ‑‑
46.	MR JUSTICE OUSELEY:  What about?
47.	MR BOWES:  At the top of page 2, my Lord, there's a reference to a set of time sheets which we would very much like to see, and therefore what we propose, my Lord, is that short written submissions ‑‑
48.	MR JUSTICE OUSELEY:  I am not going to have written submissions.  I am not a taxing master.  I am either going to deal with it by way of a summary assessment or you can go to cost of a detailed assessment.
49.	MR BOWES:  I'm grateful for that indication, my Lord.  
50.	That then leads me to my second submission, which is that as my Lord has found the decision to be quashed on ground 1 and then not quashed on ground 2, and indeed made some robust references about the arguability of this, I would invite my Lord to reflect that in the summary assessment of this.  Indeed, half the time has therefore been spent responding to ground 2, although not today, because my Lord didn't call on me to respond, but certainly the written time responding to a ground that my Lord has found in trenchant terms not to be arguable, with which we respectfully agree.
51.	MR JUSTICE OUSELEY:  Yes.  What do you want to say, what are your reservations about the time sheets?  You can see and work out the disbursements, but what do you want to say about the hours?  Do any of these activities seem inappropriate, do any of the hours seem inappropriate on them?
52.	MR BOWES:  My Lord no, but it would be very helpful to see how they were broken down in the conventional form, as indeed the Council's costs sheet was submitted.
53.	MR JUSTICE OUSELEY:  All right.  Well the case has lasted half a day, I am not inclined to send this over to the taxing master.  
54.	Mr Parkinson, what do you say about the times?  Is there a rule for when you should get these schedules of costs in? 
55.	MR PARKINSON:  My Lord, it should be 24 hours before the hearing.  That can be taken into account in deciding whether to deal with the costs through summary assessment or not or whether to adjourn it off, but your Lordship has indicated that it will be dealt with today.
56.	MR JUSTICE OUSELEY:  I am going to take something off for the second ground, unless you can persuade me otherwise.  I would normally then take a bit off to reflect the fact it is not a detailed taxation, but the costs of detailed taxation on this ‑‑ if both of you want it, you can have it.
57.	MR PARKINSON:  We don't want it.  We want costs to be dealt with today.
58.	MR JUSTICE OUSELEY:  Yes.  Well you should get your costs in earlier, then.
59.	MR PARKINSON:  Yes, that will be noted.  My Lord, in a costs award, I don't have the authorities, I wasn't anticipating this situation would arise, but the authorities show that just because a claimant has lost on a particular point or even a particular ground, doesn't in and of itself justify a split costs award.
60.	MR JUSTICE OUSELEY:  I am not going to make a split costs award, I am simply going to hack it down a bit.
61.	MR PARKINSON:  Or even hacking it down a bit.
62.	MR JUSTICE OUSELEY:  Well it is easier to hack it down a bit, because no precision is required.
63.	MR PARKINSON:  It is, my Lord.  
64.	In terms of ground 2, that was dealt with very briefly today.  The policy is the same for ground 1, a lot of the points are similar for ground 1, it's a very discrete issue.  If you are going to hack it down, I would ask that your hacking is a trimming rather than a hacking, and very minimal.  
65.	But the primary point is that the fact we lost on a particular ground, that is to be expected in litigation, it doesn't in and of itself justify reducing the costs that we have incurred.
66.	MR JUSTICE OUSELEY:  The disbursements do not include a fee for renewal, do they? 
67.	MR PARKINSON:  Well, the fee for renewal could be hacked off, I agree.
68.	MR JUSTICE OUSELEY:  But have you paid it?  Why haven't you paid it?
69.	MR PARKINSON:  Oh, because it was agreed between the parties that it would be rolled up.
70.	MR JUSTICE OUSELEY:  It's not your position to agree the fee.
71.	MR PARKINSON:  No.  Mr Buxton is absolutely right, we already paid the fee ‑‑
72.	MR JUSTICE OUSELEY:  You paid a continuation fee? 
73.	MR PARKINSON:  We did, yes.
74.	MR JUSTICE OUSELEY:  That covers the rolled up bit, does it?
75.	MR PARKINSON:  I'm told on our interpretation it does.
76.	MR JUSTICE OUSELEY:  Yes, I could have told you that would have been your interpretation.  
77.	Do you want to come back on anything?
78.	MR PARKINSON:  Well in terms of the hours, there's no specific criticism.
79.	MR JUSTICE OUSELEY:  Well that is your fault that there is no specific criticism, they have not had the sheets.
80.	MR PARKINSON:  My Lord, when you put in a costs schedule like this, you don't normally include time sheets.
81.	MR JUSTICE OUSELEY:  No, but if he had had it before 5.30, he might have asked for sheets. 
82.	Is there anything you want to come back on, Mr Bowes? 
83.	MR BOWES:  Very briefly, my Lord, I've just been instructed that, a short point, the rate on travelling and waiting is at the higher rate.  If my Lord goes to the first page of the claimant's costs schedule, summary by task.  Travelling and waiting 275, and then if one goes over the page, my Lord, you will see there are two rates, a senior partner rate of 271 and a paralegal rate at 118.  The simple point, my Lord, the senior partner rate is inappropriate.
84.	MR JUSTICE OUSELEY:  Okay.  Well I am not going to hear further submissions, I am going to do something that is rough and ready and ‑‑ 
85.	MR BOWES:  As summary assessment is, absolutely.
86.	MR JUSTICE OUSELEY:  As summary assessment is.
87.	MR PARKINSON:  My Lord, if I could just come back on that.  The key point to make here is that the number of hours that have been spent are roughly the same by both the claimant's solicitors and the defendant's solicitors.
88.	MR JUSTICE OUSELEY:  Yes, and I would do the same for them.  I am going to move to a decision, and as I say, it is going to be rough and ready, and I am going to reduce the fees to be paid to a total of £19,000, including VAT.  Something would go, I am sure, on a detailed assessment.
89.	MR BOWES:  My Lord, we need only trouble my Lord with a very short application, and that is not seeking permission to appeal, but I have tried to keep a very careful note of what my Lord said, but as my Lord would recognise, there are wider implications for my client of the judgment, and my client would like to reflect on it before troubling the Court of Appeal with anything, and so would request that the 21 days runs from the event of my Lord's transcript, rather than today.
90.	MR JUSTICE OUSELEY:  I am prepared to give you an extension, but are you asking for an expedited transcript?
91.	MR BOWES:  No, my Lord, they normally in my experience become quickly available, but sometimes they don't ‑‑
92.	MR JUSTICE OUSELEY:  They can get lost.
93.	MR BOWES:  Absolutely, and simply that ‑‑
94.	MR JUSTICE OUSELEY:  I am very reluctant to have these time limits quite in those hands.
95.	I am going to extend time until 24 March.
96.	MR BOWES:  I'm grateful, my Lord.
97.	MR JUSTICE OUSELEY:  If you need to make an application to extend it, so be it.
98.	Mr Parkinson, will you draw up the appropriate order.  Thank you very much.