Town and country planning – Outline planning permission – National planning policy framework (NPPF) – Claimant local authority applying to quash decision of first defendant secretary of state to grant permission for residential development – Whether inspector failing to understand or correctly apply requirement of sustainable development in NPPF – Whether inspector irrationally and/or wrongly concluding full objectively assessed need for housing – Whether inspector erring in approach to NPPF – Application granted
The second defendant developer applied to the claimant local authority for outline planning permission for up to 146 dwellings on land north of Moorfields, Willaston, Cheshire. The claimant refused permission on the basis that the proposed development was unsustainable development within open countryside, would result in loss of the best and most versatile agricultural land contrary to the local plan and the national planning policy framework (NPPF) and would cause significant erosion of the green gap between built up areas, contrary to local plan policy NE.4 (Green Gaps) and the NPPF. Moreover, the claimants could demonstrate a five-year supply of housing land in accordance with the NPPF. Consequently, there were no material circumstances indicating that permission should be granted contrary to the development plan.
An inspector appointed by the first defendant secretary of state allowed an appeal by the second defendant against that refusal. Although the proposal was contrary to the claimants’ local planning policies, the first defendant concluded that the proposed dwellings would make an important contribution towards housing requirements in a district where there was not a demonstrable five year supply of deliverable housing site as required under the NPPF.
The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. They contended that the inspector had: (i) failed to understand or correctly apply the requirement of sustainable development in paragraph 14 of the NPPF; (ii) irrationally and/or wrongly concluded that 1350 dwellings per annum represented the full objectively assessed need for housing and failed to have regard to other decisions made on that issue and to give adequate reasons for departing from them; and (iii) erred in his approach to the NPPF and in treating policy NE.4 (Green Gaps) as a policy for the supply of housing under paragraph 49 of the NPPF and thus out of date.
Held: The application was granted.
(1) In deciding whether or not a development was sustainable within paragraph 14 of the NPPF, an inspector had to consider both the description of sustainable development in paragraphs 6 to 10 and the guidance on the way in which sustainable development might be achieved, in paragraphs 11 to 149, to the extent that he or she considered appropriate and relevant in the particular case. It had been logical for the inspector in this appeal to decide what weight he should attach to the development plan, and determine the issue of housing supply, before he considered the issue of sustainability, as those findings were relevant to sustainability, which was a planning judgment for the inspector to make on the evidence before him. The inspector was not required to follow, nor treat as material considerations, planning judgments reached on the application of different policies to different development proposals in different locations: William Davies Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin); [2013] PLSCS 242, Bloor Homes East Midlands v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) and Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) considered.
(2) Although the inspector had not referred in his decision to earlier decision letters in which the regional spatial strategy figure of 1150 dwellings per annum had been accepted, the court was unable to infer that he had disregarded them as they were listed among the documents submitted and referred to during the inquiry. He was entitled not to follow them because they had limited evidential or probative value. Moreover, it was no longer lawful for the inspector to rely on a constrained figure that did not represent the full objectively assessed needs. Housing data from an earlier regional spatial strategy exercise had to be used with extreme caution because of policy changes in the NPPF. Furthermore, the inspector had given adequate reasons for his findings on the housing supply issue. He was not required to set out every matter presented to him during the inquiry: Hunston v Secretary of State for Communities and Local Government [2013] EWCA Civ 1510; [2014] EGILR 7 and Solihull Metropolitan Borough Council v Gallagher Estates Ltd [2014] EWCA Civ 1610; [2014] PLSCS 360 considered.
(3) Policy NE.4, properly interpreted, did not come within paragraph 49 of the NPPF and the inspector had erred in finding that it did. Furthermore, it was an error of law to seek to divide the policy so as to apply it in part only. Policy NE.4 was a policy designed to protect specific areas or features such as gaps between settlements which could exist regardless of the distribution and location of housing. It was not a policy for the supply of housing within the meaning of paragraph 49. The court endorsed the reasons of Ouseley J for giving paragraph 49 a broader purposive interpretation in South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin); [2014] PLSCS 12. However, it was not open to inspectors to disregard the distinction drawn between general policies to restrict development and policies designed to protect specific areas or features, as that went to the heart of the meaning and purpose of paragraph 49, in the context of the NPPF as a whole and within its proper statutory context: section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.
(4) A policy such as the present could not be divided according to its perceived purpose. It either came within paragraph 49 or it did not, in which case the inspector’s decision had to be taken in accordance with the policy, pursuant to section 38(6) of the 2004 Act, unless material considerations indicated otherwise. It was not safe for the court to conclude that the inspector’s error of law would have made no difference if his starting point had been that he was bound to apply NE.4 unless material considerations indicated otherwise.
Anthony Crean QC (instructed by Sharpe Pritchard) appeared for the claimants; Richard Honey (instructed by the Treasury Solicitor) appeared for the first defendant; Christopher Young (instructed by Gateley LLP) appeared for the second defendant.
Eileen O’Grady, barrister
