Peel Investments (North) Ltd v Secretary of State for Housing, Communities and Local Government and another – Town and country planning – Development plan policy – National Planning Policy Framework – Claimant developer applying to quash decision of secretary of state upholding defendant local authority’s refusal to grant planning permission for residential developments – Whether development plan policy out of date – Application dismissed
The claimant developer applied pursuant to section 288 of the Town and Country Planning Act 1990 to quash the decision of the first defendant secretary of state on appeals against the refusal of planning permission by the second defendant local authority for mixed use and residential developments.
The second defendant had adopted the 2004-2016 unitary development plan (UDP) which included policy EN2 prohibiting development where it would fragment or detract from the openness of a strategically important “green wedge” within the Worsley area. It concluded that the claimants’ proposed developments were contrary to policy EN2 and refused permission. The claimant’s appeal against that refusal was recovered by the first defendant for his own determination. The claimant relied on para 14 of the National Planning Policy Framework (NPPF) then in force, concerning the presumption in favour of granting permission for sustainable development where a local development plan was out-of-date, or deemed to be out-of-date where the local authority was unable to demonstrate a five-year supply of housing land.
An inspector appointed by the first defendant recommended that permission should be refused. He rejected the claimant’s contention that policy EN2 was out-of-date and gave it substantial weight; in any event, the housing land supply exceeded five years and so the tilted balance under para.14 did not apply. After the inquiry, a revised version of the NPPF was issued which the defendant said had no material impact on the claimant’s case. He concluded that there was no material justification for determining the appeals other than in accordance with the development plan.
The claimant contended that, on the proper construction of para.11(d) of the 2018 NPPF, policy EN2 was a constituent policy within a development plan document which, as a whole, had passed its expiry date and was automatically out-of-date. Further, policy EN2 had been overtaken by events. It was based on a plan grounded in economic, demographic and other evidence of development needs which had been superseded by the need for a balanced supply of housing including family and affordable housing.
Held: The application was dismissed.
(1) The starting point for decision-making, remained section 38(6) of the Planning and Compulsory Purchase Act 2004 which required that decisions had to be made in accordance with the development plan unless material considerations indicated otherwise. The mere age of a policy did not cause it to cease to be part of the development plan. The policy continued to be entitled to have priority given to it. The weight to be given to particular policies in a development plan might vary as circumstances changed over time, in particular if there was a significant change in other relevant planning policies or guidance dealing with the same topic. The NPPF and the policies it set out might, depending on the subject-matter and context, constitute significant material considerations. The fact that a particular development plan policy was chronologically old was, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF. In the present case, it was of significance that the first defendant himself had decided to save the local plan policies in 2007 because he thought that continuity and coherence of approach remained important considerations pending development of appropriate up-to-date policies.
(2) At the heart of the issue was a question of interpretation of planning policy, and in particular para 11d and 213 of the 2018 NPPF. The notion of a policy being out-of-date existed within the structure of the NPPF for particular purposes, namely the question of whether or not the tilted balance should apply and the weight to be attached to the policy in the decision-taking process. It was critical that there was nothing in the relevant provisions of the NPPF to suggest that the expiration of a plan period required that its policies should be treated as out-of-date. Paragraph 213 specifically contemplated that older policies which were consistent with the NPPF should be afforded continuing weight. Furthermore, the question whether a policy was out-of-date was a question of fact or in some cases fact and judgment. The expiration of the end date of the plan might be relevant to that exercise but it was not dispositive of it: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) applied. Gladman Developments Ltd v Daventry District Council [2016] EWCA Civ 1146; [2016] PLSCS 321 followed.
(3) Applying the NPPF, and in particular para 213, and the approach to the question whether policy EN2 was out-of-date, it was clear that the inspector concluded, firstly, that policy EN2 continued to be effective in delivering its original objectives and, secondly, that the reasons for policy EN2’s protection were not only no less relevant than they had been within the plan period but also that they remained consistent with para 157 of the 2012 NPPF. Those were planning judgments which the inspector was entitled to reach and portrayed no error of law in the approach to whether or not policy EN2 was out-of-date.
(4) It was not uncommon to have plan policies related to environmental protection whose objectives would, and were intended to, continue well beyond the end of a plan period. It would be both counter-intuitive, and contrary to long standing provisions of national policy, if policies in a development plan protecting those interests were deemed out-of-date at the expiration of a plan period. There was no warrant in para 11d and 213 of the NPPF, or the Bloor test, for such a conclusion. It was significant to note the inspector’s lengthy analysis and clear conclusions that the land designated as policy EN2 continued to be a valued landscape, open space and recreational resource continuing to serve the amenity and countryside recreation purposes which justified its original designation. He identified that that purpose remained consistent with the policies of the 2012 NPPF. That was a planning judgment properly open to the inspector and the first defendant.
Martin Kingston QC and James Corbet Burcher (instructed by Shoosmiths Solicitors) appeared for the claimant; Richard Honey (instructed by the Government Legal Department) appeared for the first defendant; Christopher Katkowski QC and Matthew Fraser (instructed by Salford City Council) appeared for the second defendant.
Eileen O’Grady, barrister
