In Borough of Telford and Wrekin v Secretary of State for Communities and Local Government and another [2016] EWHC 3073 (Admin), Lang J refused to quash the grant of planning permission on appeal under section 288 of the Town and Country Planning Act 1990 on the grounds that the inspector had misapplied NPPF policies indicating that development “should be restricted” and therefore disengaged the NPPF14 presumption in favour of sustainable development (“PiF”). The authority had resolved to grant permission when it considered it did not have a five-year housing land supply but in the period after committee reconsidered its decisions in light of new evidence and then refused to grant permission.
The inspector concluded that various housing policies were out of date and should not be given full weight, applying NPPF215 (and so applied the last limb of NPPF14). He doubted the five-year housing land supply position but did not reach a firm conclusion. Nor did he accept the authority’s position that NPPF12 on best and most versatile (“BMV”) agricultural land was a policy which indicated that “development should be restricted” and so disengaged the NPPF14 PiF. A policy protecting “locally important incidental open land within or adjacent to the built up area” could not, he held, sensibly operate as a blanket protection on open countryside. In treating policies as out of date, he had regard to the authority’s recent grant of permission for an urban extension outside adopted settlement boundaries.
Dismissing the claims in respect of these findings, Lang J held that the inspector had been entitled to consider other recent grants of planning permission when considering whether settlement boundary policies were out of date. The urban extension consent was “plainly a relevant consideration as it supported the contention that current housing needs could not be adequately met within the settlement boundaries identified in the policies”. She also upheld his approach to the “incidental open land policy”, which could not provide the blanket protection the authority contended. Nor could NPPF12 (recommending poorer soils to be used before BMV land) be a restrictive policy for NPPF14 purposes. The approach in Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] EWHC 421 (Admin) did not require permissive policies which are “simply an instruction to (i) take into account benefits or (ii) to prefer the use of certain land” to be treated as restricting development. The grant of permission on BMV elsewhere was potentially material.
Policies imposing an absolute restriction on development in the countryside were properly treated as out of date for NPPF215 and NPPF14 purposes – the great value on countryside in the NPPF does not include “a blanket protection […] for its own sake”.
The inspector’s two-stage approach (considering whether the restrictions into NPPF134 Heritage Policies triggered a prohibition and only then considering the presumption in favour of sustainable development) was in line with R (on the application of Watermead Parish Council) v Aylesbury Vale District Council [2016] EWHC 624 (Admin).
Roy Pinnock is a partner in the planning and public law team at Dentons
