Town and country planning – Local development plan – National planning policy framework – Duty to co-operate – Sustainable development – Defendant local planning authority submitting draft local plan for independent examination by inspector – Claimants engaging in examination procedure and objecting to certain plan policies – Plan being adopted following main modifications procedure – Claimants applying to quash plan – Second defendant local authority refusing claimants’ applications for planning permission – Inspector appointed by first defendant secretary of state finding development proposals not sustainable – Claimants applying to quash decision – Whether defendants failing to comply with requirements of NPPF in preparing and adopting plan – Whether defendants failing to comply with duty to co-operate under section 33A of the Planning and Compulsory Purchase Act 2004 – Whether defendants failing to adopt “sound” plan – Whether claimants entitled to rely on points not taken before inspector – Whether inspector erring in deciding that presumption in favour of sustainable development not applicable – Whether inspector failing properly to apply presumption in favour of sustainable development – Applications dismissed
The defendant local planning authority published a draft local development plan for the Test Valley. The claimants were the freehold owners of a very substantial land holding at Adanac Park, Nursling, which was directly adjacent to the boundary between the defendants’ area and Southampton City Council and were promoting various sites for residential and commercial development. During the public consultation exercise, the claimants objected to some draft policies in the plan, including an employment policy restricting development to B1 uses in the area where they owned land. The claimants wanted the policy to be amended to allow for B2 and B8 uses as well. The defendants considered making amendments and submitted the plan to the secretary of state to consider whether it was “sound” within the meaning of the Planning and Compulsory Purchase Act 2004. The claimants made representations to the examining inspector but the plan was adopted as sound.
The claimants had previously made a number of planning applications, including one for B8 development in the area restricted to B1 uses in the draft local development plan. That application was refused. An inspector appointed by the defendant secretary of state dismissed an appeal against refusal of that application. He found, among other things, that the presumption in favour of sustainable development in paragraph 14 of the National Planning Policy Framework (NPPF) did not apply to the applications.
The claimants issued proceedings: (i) challenging the validity of the plan under section 113 of the 2004 Act on the ground, among other things, that the inspector had failed to address an alleged under-allocation of land to meet the objectively assessed need for B8 development in compliance with the NPPF so that the plan should not have been treated as sound, a point not taken during the examination before the inspector; and (ii) pursuant to section 288 of the Town and County Planning Act 1990, challenging the decision to uphold the refusal of planning permission on the ground, among other things, that the inspector had erred in failing to consider the wider presumption in favour of granting permission for sustainable operating outside paragraph 14 of the NPPF as in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 96. The actions were consolidated.
Held: The applications were dismissed.
(1) In general, a factual or policy issue affecting the soundness of a plan should not be allowed to be raised for the first time in a challenge brought under section 113 of the Planning and Compulsory Purchase Act 2004, a fortiori when it could have been raised in the examination by the inspector; and there was either no justification for the failure to do so or not one sufficient to outweigh the disadvantages of allowing a new “soundness” point to be raised after the adoption of the plan. The process of preparing a local plan was costly and time-consuming not only for the local planning authority but also the many stakeholders and interests involved. In addition, the NPPF emphasised the importance in the public interest of having up to date local plans. The use of a section 113 challenge to pursue new points in that manner should firmly be resisted.
The claimants could and should have raised their B8 shortfall point in their original objections to the plan and during the examination. No explanation had been put forward to justify their failure to do so. Their contention was dependent upon the factual and policy context and was obviously one where fact finding and the use of judgment by the inspector in the application of the NPPF would have been called for had it been raised. Those were therefore powerful reasons for not allowing it to be raised as a new point in the High Court.
(2) In any event, whether a local plan was “sound” within section 20(7B)(b) of the 2004 Act was a matter of judgment for the inspector; the court’s role was limited to reviewing whether the inspector could rationally make the assessment that it would be reasonable to conclude that the local planning authority had complied with the duty under section 33A to co-operate. It would undermine the structure of the 2004 Act and the procedure it provided for review by an independent inspector if, on a section 113 challenge, the court sought to apply a more intrusive form of review in its assessment of the underlying lawfulness of the local authority’s conduct or performance. The inspector’s conclusion could not be impugned unless it was irrational or unlawful: Zurich Assurance Ltd v Winchester City Council [2014] EWHC 857 (Admin) applied.
The inspector had found that the local authority had obtained sufficient information on whether adjoining authorities would be able to provide affordable housing to meet any part of the needs arising within its area, and that it would have been pointless to make a formal request for assistance in meeting the shortfall. It was impossible to treat those conclusions as irrational.
(3) The presumption in favour of sustainable development within the NPPF was contained solely within paragraph 14, which had to be read as a whole. The presumption in favour of sustainable development was not just concerned with the decision-taking but also with plan-making. In a development plan led system, plan-making provided the context and starting point for decision-making. The reliance placed upon the “golden thread” in order to justify a wider presumption in favour of sustainable development was wholly misconceived. The presumption was a golden thread running through the plan-making and decision-taking functions set out in paragraph 14. Paragraph 14 of the NPPF had been drafted to operate within the context of the statutory plan led regime and section 38(6) of the Planning and Compulsory Purchase Act 2004. Paragraph 14 was not simply an explanation of the effect of the presumption in to which it referred. It also defined the circumstances in which the presumption in favour of sustainable development applied, both for the two limbs applicable to plan-making and the two limbs applicable to decision-making: Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 88 and East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin); [2016] PLSCS followed. Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin); [2016] PLSCS 96 not followed.
The inspector had not erred in failing to apply any wider presumption under the NPPF, having found that the presumption in favour of sustainable development under paragraph 14 of the NPPF did not apply because the development plan policies were neither out of date nor silent in respect of the provision for B8 development. As there was no other basis for interfering with the inspector’s decision, the application under section 288 of the 1990 Act would be dismissed.
Per curiam: In Wychavon, the secretary of state had accepted that the inspector’s decision should be quashed but had not attended the hearing or explained his reasons for taking that view. Consequently, the judge in that case had not had any assistance from the secretary of state on the proper interpretation of the NPPF: assistance of the kind received from the secretary of state in the present case might well have led to a different outcome in that case. It was plainly unacceptable for the secretary of state simply to accept that an inspector’s decision should be quashed, or would not be defended, without explaining to the court and the other parties the precise reasons for doing so. An unexplained concession by a defendant that a decision should be quashed was just as unacceptable as a draft consent order put before the court for its approval where the reasons for seeking the quashing of a decision were unexplained, ambiguous or lacked sufficient detail: R (on the application of Kemball) v Secretary of State for Communities and Local Government [2015] EWHC 3338 (Admin) considered. It was a practice which should cease.
Jeremy Cahill QC and James Corbet Burcher (instructed by Clyde & Co LLP) appeared for the claimant; Michael Bedford QC (instructed by Sharpe Pritchard) for the defendant local planning authority; Richard Honey (instructed by the Government Legal Department) appeared for the defendant secretary of state.
Eileen O’Grady, barrister
Click here to read the transcript of Trustees of the Barker Mill Estates v Test Valley Borough Council; Trustees of the Barker Mill Estates v Secretary of State for Communities and Local Government and another.
