Town and country planning – Planning permission – Town and Country Planning Act 1990 – Appellant’s planning inspector refusing planning permission for residential development on grounds of conflict with development plan policy on residential amenity – Decision quashed on ground that inspector failing to comply with duty under section 38(6) of 1990 Act to make decision in accordance with development plan unless material considerations indicating otherwise – Whether obliged to consider whether proposal compliant with development plan as a whole notwithstanding conflict with one particular policy – Appeal allowed
The respondent wished to carry out a development of 114 dwellings, including 40% affordable housing, a new public open space, pedestrian corridors and other ancillary features, on land in Stone, Staffordshire. The site comprised roughly 5 ha of farmland on the south-western edge of the town and was not allocated for development in the development plan. It adjoined an existing modern residential development that included a short cul-de-sac, the end of which almost abutted the site.
The local planning authority refused planning permission for the development on the ground that the amount of additional traffic that it would generate would result in unacceptable levels of noise and disturbance, with a significantly harmful effect on the living conditions of the neighbouring residents. The respondent appealed unsuccessfully to the appellant secretary of state, whose planning inspector found that the development would conflict with a development plan policy on residential amenity and concluded that the acknowledged benefits of the proposed scheme did not outweigh the harm to other residents resulting from the increased levels of traffic noise and disturbance.
The inspector’s decision was subsequently quashed in proceedings brought by the respondent under section 288 of the Town and Country Planning Act 1990. The judge held that the inspector had failed to comply with the duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to make her decision in accordance with the development plan unless material considerations indicated otherwise. He found that, while the inspector had been entitled to find that the development was contrary to the development plan policy on residential amenity, she had failed to consider whether the development accorded with the development plan as a whole: see [2015] EWHC 886 (Admin); [2015] PLSCS 113. The appellant appealed.
Held: The appeal was allowed.
(1) The section 38(6) duty was the essential component of the “plan-led” system of development control. It embodied a presumption in favour of the development plan, requiring decisions to be made by giving priority to the plan while also weighing all other material considerations in the balance, to establish whether the decision should be made in accordance with the plan: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 applied. The decision-maker therefore had to understand the relevant provisions of the plan, recognizing that they might sometimes pull in different directions. Section 38(6) did not prescribe the way in which the decision-maker was to go about discharging the duty. It did not specify, for all cases, a two-stage exercise, in which the decision-maker first decided whether the development plan should be accorded its statutory priority and then, if he decided that it should not, he then put it aside and concentrated on the material factors that remained for consideration. However, the duty could only be performed properly if the decision-maker, in the course of making the decision, established whether or not the proposal accorded with the development plan as a whole: R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878 and Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) applied. The section 38(6) duty was not displaced or modified by government policy in the National Planning Policy Framework (NPPF). Such policy did not have the force of statute, nor did it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, the NPPF to a planning decision was one of the other material considerations to be weighed in the balance.
(2) In the instant case, the inspector had not failed to do what section 38(6) required. The inspector’s decision letter was intended to deal with the evidence and argument presented to her. The analysis that it contained was, as would be expected, concerned with the matters in contention between the parties. The case was not a complex one and it involved only one main issue, namely whether the noise and disturbance resulting from additional traffic generated by the proposed development would be unacceptable because it would have a significantly harmful effect on the living conditions of neighbouring residents. That corresponded to the sole issue arising from the local planning authority’s reasons for refusal. The issue was not framed in terms of a balance, or potential balance, between harm and benefit, or between the considerations that arose under the development plan policy on residential amenity and other development plan policies. In dealing with that single main issue, the inspector was entitled to proceed as she did. Having assembled all the relevant material, including the provisions of the development plan, she was entitled to proceed at once to the process of assessment, paying all due regard to the priority of the development plan but reaching her decision after a general study of all the material before her: City of Edinburgh Council applied.
(3) This was not a case in which the parties were at odds about the meaning or effect of any relevant policy in the development plan, or in which it was suggested that relevant policies were in conflict or tension with each other. It was a case in which the outcome turned on the application of a single, and simply expressed, policy directly relevant to the critical issue. In the particular circumstances, it was possible to conclude that the proposed development was in conflict with the development plan because it was contrary to a single policy of the plan, even though it did not offend other policies and might even find some general support in them. There could be cases in which a proposal might fail to be in accordance with the development plan as a whole even if it conflicted with only one policy. The inspector had not failed to give the required statutory priority to the development plan under section 38(6). She had considered the question of whether the proposal was in accordance with the plan and had properly concluded that it was not because it did not accord with the policy on residential amenity. Having done that, she had found that the considerations weighing in favour of a grant of planning permission were insufficient to outweigh the conflict with the plan. That was a classic balancing exercise of the kind envisaged under section 38(6), which the inspector had undertook appropriately and lawfully in the circumstances of the case before her.
Richard Kimblin QC (instructed by the Government Legal Department) appeared for the appellant; Hugh Richards (instructed by Gateley plc) appeared for the respondent.
Sally Dobson, barrister