Planning permission – Appeal – National planning policy framework – Claimant applying to quash decision of planning inspector dismissing claimant’s appeal against refusal of local authority to grant permission for residential development – Whether inspector erring in law – Application dismissed
The claimant company applied under section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the first defendant secretary of state, whereby he dismissed the claimant’s appeal against the refusal of the second defendant local authority to grant outline planning permission for residential development, new access, public open space, equipped children’s play area, cycle and footpath routes and sustainable urban drainage measures on land south of Markfield Road, Ratby, Leicestershire.
The claimant contended that the inspector had failed to: (i) provide adequate reasons, or took into account immaterial considerations, when dealing with the issue of landscape impact, including misinterpretation of the development plan and NPPF and inadequate reasoning in his conclusions concerning the impact on the landscape and on recreational use; (ii) consider the nature and extent of any conflict with certain policies of the development plan or to address the weight to be applied to them properly in the light of the NPPF and address properly the scheme’s compliance with policy CS8 and that it complied with the development plan taken as a whole; and (iii) failed to consider whether the scheme involved sustainable development in terms of NPPF policy and therefore whether the presumption in favour of such development applied to the proposal.
Held: The application was dismissed.
(1) An inspector appointed to conduct a planning appeal had to have regard to the statutory development plan and material considerations pursuant to section 70(1) of the 1990 Act. He or she also had to determine the proposal in accordance with the development plan unless material considerations indicated otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004. Further, the inspector had to consider the nature and extent of any conflict with the development plan and whether the development accorded with the development plan. There might be some points in the plan which supported the proposal but there might be some considerations pointing in the opposite direction. He or she would be required to assess all of those matters and decide whether, in the light of the whole plan, the proposal did or did not accord with it. National policy also had to be applied unless the inspector gave reasons for not doing so. If it was shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision would be quashed unless the court was satisfied that the decision would necessarily have been the same: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 57 P & CR 306, North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113, Horsham District Council v Secretary of State for the Environment [1993] 1 PLR 81, City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71, (R (on the application of Milne) v Rochdale Metropolitan Borough Council (No 2) [2000] EWHC 650 (Admin), Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69, Sea Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), [2012] PLSCS 121, Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P & CR 6 considered.
(2) The NPPF was a policy document which ought not to be treated as if it had the force of statute. When determining an application for planning permission for housing development, the decision maker would have to consider in the usual way whether or not the proposal accorded with the relevant provisions of the development plan. If it did, the question would be whether other material considerations, including relevant policies in the NPPF, nevertheless indicated that planning permission should be granted. The NPPF was not to be used to obstruct sensible decision making. It was there as policy guidance to be had regard to in that process, not to supplant it. AN inspector was not, as a general rule, required to spell out the provisions of the NPPF. However, if he or she were minded to depart from it, reasons had to be given for doing so. There was nothing in the NPPF which required an inspector to give no or little weight to extant policies in the development plan. Were it to do so, it would be incompatible with the statutory bases of development control in section 38(6) of the 2004 Act and section 70 of the 1990 Act: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) and Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168; [2016] PLSCS 90 applied. Dartford Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 649 (Admin) considered.
(3) In all the circumstances, when properly analysed, no criticism could be made of the decision letter on any ground arguable in law. It was not for a judge to express any view on the planning merits.
Alison Ogley (instructed by Marrons Shakespeares, of Leicester) appeared for the claimant; Tim Buley (instructed by the Government Legal Department) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister