Town and country planning – Planning permission – Claimant local authority refusing planning permission for residential development – Inspector allowing developer’s appeal – Claimants applying to quash decision – Whether inspector failing properly to apply statutory requirement to determine appeal in accordance with development plan unless material considerations indicated otherwise – Application granted
The claimant local authority applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the first defendant secretary of state allowing an appeal by the second defendant developer against the claimants’ refusal of planning permission for up to 46 residential units and associated access at 17, The Close, Horley, Surrey.
The claimants had refused planning permission because, amongst other things, they considered that the proposed development, which was within the rural surrounds of Horley and Gatwick Airport Open Setting Designations, would have a serious and harmful impact on the openness of the area and contribute towards the coalescence of Horley with Gatwick Airport, contrary to policies in the Borough Local Plan 2005 and in the Local Plan Core Strategy 2014.
An inspector appointed by the first defendant secretary of state allowed the second defendant’s appeal and granted planning permission. The claimants contended that the inspector had failed properly to apply the statutory requirement to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. Instead, he gave priority to his finding that the proposal amounted to sustainable development, in effect applying a presumption in favour of allowing sustainable development, in the absence of material harm. In adopting that approach, he also misapplied the National Planning Policy Framework (NPPF).
The first defendant conceded that the inspector had erred in his approach and that the decision ought to quashed. However, the second defendant resisted the challenge, arguing that the inspector had correctly given primacy to the development plan but concluded that there were other material considerations which, when weighed in the balance, indicated that planning permission ought to be granted. The inspector was entitled to reach that conclusion as a specialist exercising a planning judgment and the court ought not to interfere with it.
Held: The application was granted.
(1) The concept of sustainable development was not only relevant to decision-taking but also to plan-making. Paragraph 14 of the NPPF described the operation of the presumption in favour of sustainable development for plan-making and para 16 required plans to be based on the presumption so that it was clear that development which was sustainable could be approved without delay. Development plans were required to comply with the NPPF and to deliver sustainable development as part of the requirement of soundness. It followed that an up-to-date development plan would allocate and promote sustainable development. Thus, a proposal which complied with the development plan would constitute sustainable development. It would benefit from the statutory presumption in section 38(6) of the Planning and Compulsory Purchase Act 2004, re-affirmed in paras 11 and 12 of the NPPF, as well as the presumption in favour of the grant of planning permission in the first bullet point under “decision-making” in para 14. Paragraph 14 exhaustively defined the circumstances in which a presumption in favour of sustainable development could arise and there was no general presumption outside that paragraph: Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 88, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin); [2016] PLSCS 318 and Trustees of the Barker Mill Estates v Secretary of State for Communities and Local Government [2016] EWHC 3028 (Admin); [2017] EGLR 14 applied.
(2) In the present case, the inspector had failed to take into account that the up-to-date development plan should be presumed to allocate and promote sustainable development. He embarked upon a free-standing overall assessment as to whether the proposal was sustainable development without following the path set out in paras 11 to 15 of the NPPF. A free-standing assessment of sustainable development outside para 14 had been held to be a misapplication of the NPPF in Barker Mills, East Staffordshire and Cheshire East. Although earlier authorities approved such an assessment, the preponderance of authority was now against the approach adopted by the inspector.
(3) Once the inspector had found that the proposal amounted to sustainable development which was desirable because it would deliver additional housing sooner, he proceeded upon the basis that planning permission should be granted, despite the conflict with the development plan, provided there was no other identifiable harm. In doing so, he effectively reversed the statutory presumption in section 38(6) of the 2004 Act, which required him to decide the application in accordance with the development plan, unless material considerations indicated otherwise. Despite his experience and expertise, the inspector had adopted an unorthodox approach which was at odds with section 38(6) of the 2004 Act and the NPPF. The court was unable to conclude that he would have reached the same conclusion if he had adopted a lawful approach to the decision-making process. Accordingly, his decision would be quashed.
James Findlay QC and Emma Dring (instructed by Sharpe Pritchard LLP) appeared for the claimant; the first defendant did not appear and was not represented; James Pereira QC (instructed by Cripps LLP) appeared for the second defendant.
Eileen O’Grady, barrister
