The decision in South Northamptonshire Council v Secretary of State for Communities and Local Government [2013] EWHC 11 (Admin); [2013] PLSCS 12 issues two stark practical reminders for inspectors. The first is that, for the purposes of section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the National Planning Policy Framework (“NPPF”) is no more than an “other material consideration”. The second relates to the importance of recognising expressly or at least tacitly in the decision letter that section 38(6) is still indicative of a plan-led system in its creation of a statutory presumption in favour of the development plan.
In that case, the claimants sought to challenge under section 288 of the 1990 Act the decision of an inspector on appeal to grant planning permission for a wind farm. The essence of their case was that the inspector had failed to comply with the duty under section 38(6) to make a determination in accordance with the development plan, unless material considerations indicate otherwise. More specifically, they contended that the inspector had applied the wrong test by carrying out a straightforward balancing exercise, weighing harms against benefits, rather than according primacy to the development plan.
The court allowed the claim. The judge first reminded himself of the proper approach to an inspector’s decision letter. It must not be read like a judgment or a statute, and the court should not readily infer that the inspector has erred in law. However, those affected by the development proposals are entitled to know whether the inspector has followed the law.
He found that she had identified the relevant development plan, and recognised that there was a conflict with a number of its policies in respect of landscape and heritage assets. She had also applied the NPPF as a material consideration, and given considerable weight to its renewable energy policy. She then took the view that the harm to heritage assets etc was not sufficient to outweigh the wider economic and environmental benefits of the development.
But, on a reading of the decision letter, the judge concluded that she did not accord the development plan the priority required by section 38(6). At no point did she mention the priority due to it, or express herself in terms that indicated that she was aware of the plan-led concept. The exercise was a careful evaluation of competing considerations, but without any indication that the plan had priority.
John Martin
