Town and country planning – Local plan – National planning policy framework – Claimants applying to quash decision of first defendant secretary of state to allow appeal against refusal of planning permission – Whether inspector failing to discharge statutory duty to determine application in accordance with development plan – Whether inspector misapplying NPPF – Application granted
The second defendant developer applied to the claimant local authority for outline planning permission for a residential development of up to 121 dwellings. The proposed development site of about 7.72ha comprised three agricultural fields and lay to the south of the village of Weedon, off New Street, on ground rising up onto Round Hill, which was part of the Northamptonshire Uplands.
The claimants refused permission on the grounds, among other things, that the proposed development would be contrary to saved local plan policies by reason of it being large scale development outside the confines of the restricted infill village and so would not comply with Local Plan policy HS22. Moreover the development would conflict with policy HS24 as it was on a site outside an existing settlement in the open countryside.
An inspector appointed by the first defendant secretary of state allowed an appeal by the second defendant against refusal of permission. He correctly identified, as part of the development plan, policies HS2 and HS24 but gave those policies reduced weight and concluded that the benefit of the housing to be provided outweighed the conflict with the development plan.
The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. They contended, among other things, that the inspector had erred in failing to determine the application for planning permission in accordance with the development plan and had misapplied the national planning policy framework (NPPF) which reiterated that planning decisions were to be made in accordance with the development plan unless material considerations indicated otherwise.
The first defendant conceded that the decision ought to be quashed but the second defendant continued to resist the application.
Held: The application was granted.
(1) Section 70(2) of the 1990 Act provided that the decision-maker should have regard to the provisions of the development plan so far as material to the application. The NPPF was a material consideration for that purpose but it was a policy rather, not a statute, and did not displace the statutory presumption in favour of the development plan. Planning authorities and other planning decision-makers, including an inspector determining an appeal on behalf of the secretary of state, were not entitled to determine the meaning of development plans from time to time as they pleased, within the limits of rationality: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 and Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin) applied.
(2) In the present case, the decision letter demonstrated a series of errors in the inspector’s approach to the saved policies, in particular HS24. The inspector had given reduced weight to the saved policies on the grounds of their age. However, age alone was not a sufficient basis for the decision as NPPF 211 provided that the policies in the local plan should not be considered out-of-date simply because they had been adopted prior to the publication of the NPPF. Applying NPPF 215, the inspector was required to analyse in what way, and to what extent, the policies were not consistent with the NPPF but he had not done so. He had failed to identify the age of the policies for that purpose by considering whether the policies should be treated as dating from 1997 (the date of adoption) rather than 1989 (the date of the structure plan) and the significance of the policies being saved in 2007 to ensure continuity on the plan-led system and avoid delays in the preparation of development plans.
(3) Although the inspector had already determined the issues under NPPF 47 and 49 in the claimant’s favour, he had re-introduced them later in the decision letter and failed to take account of the differences between NPPF 49 and 215 and thus fell into error. The sole focus of paragraph 49 was the supply of deliverable housing sites, pursuant to the policy in paragraph 47. In contrast, paragraph 215 had a much broader ambit, which required assessment of the extent to which the saved policies were consistent with all NPPF policies, including policies for the protection of the natural environment and policies favouring development in settlements, brownfield sites, sustainable locations etc and not in the countryside. The inspector had overlooked that, and did not consider the extent to which HS24 was consistent with such NPPF policies, even though HS24 was headed “Open countryside” and was clearly intended to protect the countryside. When the inspector characterised HS24 merely as a “policy for the supply of housing” he wrongly adopted the approach required under NPPF 47 and 49. Although the claimants conceded in relation to paragraphs 47 and 49 that HS24 was a policy for the supply of housing, in the light of the decision in South Northamptonshire Council v Secretary of State for Communities & Local Government [2014] EWHC 573 (Admin), the inspector had been unfair to suggest that they had conceded that HS24 only concerned housing supply for the different purposes of paragraph 215.
(4) Paragraph 47 set out the policy for a local authority’s plan-making, not decision-taking. The two functions were clearly distinguished throughout the NPPF, and appeared to have been confused by the inspector when he referred to the lack of consistency with the thrust of paragraph 47 towards boosting significantly the supply of housing. Further, paragraph 49 was mechanistic (if the minimum figure was not reached the policy was automatically deemed out-of-date), whereas paragraph 215 provided that due weight should be given to relevant plans according to their degree of consistency with the NPPF. Not only did that require a careful assessment, but it also meant that the inspector had to specify the weight which was due to be accorded to the policy in issue. Typically, inspectors expressed weight as limited, moderate, substantial etc. In this case, the inspector had merely concluded that he was giving HS22 and HS24 reduced weight. The term “reduced” was not sufficiently clear and it was impossible to work out from the decision letter how much weight the inspector had accorded to HS24.
Christiaan Zwart (instructed by District Law) appeared for the claimants; Richard Kimblin (instructed by Irwin Mitchell LLP) appeared for the second defendant; The first defendant did not appear and was not represented.
Eileen O’Grady, barrister
