Town and country planning – Development plan policy – National Planning Policy Framework – High Court refusing to quash decision of first respondent secretary of state upholding refusal of planning permission for residential developments – Appellant developer appealing – Whether development plan policy out-of-date – Whether first respondent properly applying development plan policies which were time-expired and/or lacked policy in respect of housing supply – Appeals dismissed
The appellant developer applied for planning permission for the construction of up to 600 and 165 homes respectively on land in West Salford known as the Worsley Greenway which lay within the area of the second respondent local authority.
The second respondent had adopted the 2004-2016 unitary development plan (UDP) which included policy EN2 prohibiting development where it would fragment or detract from the openness of a strategically important “green wedge” within the Worsley area. It concluded that the appellants’ proposed developments were contrary to policy EN2 and refused permission.
The appellant’s appeals against those refusals were recovered by the first respondent secretary of state for his own determination. The appellant relied on paragraph 14 of the National Planning Policy Framework (NPPF) then in force, concerning the presumption in favour of granting permission for sustainable development where a local development plan was out-of-date, or deemed to be out-of-date where the local authority was unable to demonstrate a five-year supply of housing land.
An inspector appointed by the first respondent secretary of state recommended that permission should be refused. He rejected the appellant’s contention that policy EN2 was out-of-date and gave it substantial weight; in any event, the housing land supply exceeded five years and so the tilted balance under paragraph 14 did not apply. After the inquiry, a revised 2018 version of the NPPF was issued which the first respondent said had no material impact on the appellant’s case. He concluded that there was no material justification for determining the appeals other than in accordance with the development plan.
The High Court dismissed the appellant’s application, pursuant to section 288 of the Town and Country Planning Act 1990, to quash that decision: [2019] EWHC 2143 (Admin); [2019] PLSCS 172. The appellant appealed.
Held: The appeals were dismissed.
(1) There was nothing in paragraph 11d of the 2018 NPPF, or its predecessor paragraph 14 of the 2012 NPPF, to suggest that the expiry of the period of the plan automatically rendered the policies in the plan out-of-date. A policy was not out-of-date simply because it was in a time-expired plan and, if the NPPF had intended to treat as out-of-date all saved but time-expired policies, it would not have used the phrase “out-of-date” but rather the language of time-expired policies or policies in a time-expired plan: Paul Newman New Homes Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2367 (Admin) followed.
If the policies which were most important for determining the planning application had been overtaken by things that had happened since the plan was adopted, either on the ground or through a change in national policy, or for some other reason, so that they were now out-of-date, the decision-makers had to apply the tilted balance expressed in the presumption in favour of sustainable development. The contention that the policies in a plan which was past its expiry date were in every case out-of-date was not a correct reflection either of the NPPF as a whole or of regulation 5(1)(a)(i) of the Town and Country Planning (Local Planning) (England) Regulations 2012: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) applied.
(2) It was obvious that many policies would not expire with the plan but, rather, would survive beyond the plan period. The policy under consideration in the present case, which addressed environmental protection, clearly had a life beyond the expiry of the plan. Although a local development document was intended to present as a coherent suite of policies, that objective was not inconsistent with the inclusion of some environmental policies being intended and designed to operate on a longer time scale than that which might be contemplated by the plan period. Paragraph 133 of the 2018 NPPF described the “fundamental aim” of green belt policy as being to prevent urban sprawl by keeping land permanently open, adding that the essential characteristics of green belts were their openness and their permanence.
That characterisation of green belt policy in the NPPF was wholly inconsistent with the notion that environmental policies lapsed automatically when the plan period came to an end or when there were no strategic housing policies in the plan. The provisions in section 19(1B) and (1C) of the planning and Compulsory Purchase Act 2004 and paragraphs 17 and 20 of the 2018 NPPF did not provide support for the appellant’s case. They related to the preparation of future plans, not the question whether existing policies were out-of-date.
(3) The suggestion that the first respondent approached the question whether the policy was out-of-date solely by reference to its consistency with the NPPF overlooked the fact that the inspector took into account a wide range of factors, including those raised on behalf of the appellant. His analysis was accepted by the first respondent and the assessment of the inspector, adopted and acknowledged by the first respondent, addressed the issue of consistency with the NPPF and the question raised by the appellant whether the policy had been overtaken by the demise of the policies relating to housing supply, together with the current evidence in relation to housing need.
(4) The inspector and the first respondent were plainly aware of, and took into account, the separate point that the second respondent was not meeting the needs for certain types of housing. There was nothing inconsistent in the inspector finding that the numbers of houses being built was exceeding the five-year supply whilst noting, and taking into consideration, deficiencies in the quality of the houses being constructed. Whether a policy became out-of-date and, if so, with what consequences were matters of pure planning judgment, not dependent on issues of legal interpretation: Secretary of State for Communities and Local Government v Hopkins Homes Ltd [2017] EGLR 27 considered.
Rupert Warren QC and James Corbet Burcher (instructed by Shoosmiths LLP) appeared for the appellant; Richard Honey (instructed by the Government Legal Department) appeared for the first respondent; Christopher Katkowski QC and Matthew Fraser (instructed by Manchester City Council Legal Services) appeared for the second respondent.
Eileen O’Grady, barrister
