Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government – Town and country planning – Planning permission – Core strategy – Local planning authority refusing planning permission for development as contrary to policy DM4 in core strategy – Inspector appointed by secretary of state upholding decision to refuse permission – Developer applying for order quashing decision – Whether inspector giving adequate reasons for departing from earlier appeal decisions considering same policy – Application granted
The claimants applied to the second defendant local authority for planning permission for the development of up to 135 residential dwellings (including up to 35% affordable housing), the introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access points and other ancillary works at Langford Road, Henlow, Bedfordshire. That application was refused on the ground, amongst other things, that the development was contrary to policy DM4 in its core strategy. The claimants appealed under section 78 of the Town and Country Planning Act 1990 contending that the policy was inconsistent with the National Planning Policy Framework (NPPF) and should be regarded as out of date and of little weight.
The first defendant secretary of state called in the application for his own determination and, following a public inquiry, an inspector appointed by the first defendant concluded that the appeal should be dismissed. He referred to two earlier appeal decisions which considered the question of the weight to be attached to policy DM4 and whether it was out of date.
The claimant made an application under section 288 of the 1990 Act seeking an order quashing the decision contending that the inspector had failed to give any adequate reasons as to why he was departing from the judgment formed by inspectors in earlier appeal decisions that the policy was out of date. The first defendant conceded that the inspector had erred in his consideration as to whether policy DM4 was out of date, and had failed to give adequate reasons for departing from the two earlier decisions, where those decisions were both recent and involved the same factual and policy background as in the present appeal. The second defendant continued to contest the claim.
Held: The application was granted.
(1) In determining an application for planning permission, a decision maker was required by section 70(2) of the Town and Country Planning Act 1990 to have regard to the provisions of the development plan so far as material to the application. The statutory discretion under section 70(2) required the decision-taker to have regard to material considerations. It was beyond argument that a previous decision by a planning inspector on precisely the same issue (namely whether or not policy DM4 was out of date and the weight to be attached to it) would be a material consideration for an inspector in which that point arose subsequently. That subsequent inspector, when considering the material consideration which was the previous decision, would need to consider and apply the principles set out in North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113. Whilst consistency was self-evidently important, that did not mean that like cases had to be decided alike. Where there was a basis for the earlier decision to be distinguished or departed from then that reason had to be identified and the explanation justifying distinguishing the earlier decision explained. Simply because by the time the present inspector came to determine the point there were a significant number of previous decisions falling on both sides of the line in the debate over policy DM4 was not a reason for not applying the principle.
(2) It was important to read the decision letter as a whole and to take account of the points which the inspector raised in his earlier reasoning. However, the present inspector had not provided anything like adequate reasoning to explain why he was distinguishing or departing from the earlier decision in which the inspector had reached the clear conclusion that, given the large scale of the five-year housing land supply which was on dwellings outside settlement envelopes and contrary to DM4, the strict application of policy DM4 would frustrate any ability to achieve a five-year land supply contrary to the clear requirements of para 47 of the NPPF. The inspector did not grapple with that reasoning. The fact that planning permission for residential development might have been granted by disapplying or affording limited weight to policy DM4 in the balancing exercise did not engage with the question of whether or not policy DM4 could properly be regarded as an up to date policy, if its application would play a significant part in preventing the achievement of a five-year housing land supply. Accordingly, in the present case, the inspector had erred in law by failing to properly grapple with and provide reasons for departing from the earlier conclusions of inspectors addressing the same issues in respect of policy DM4. That error had to lead to the decision reached by the inspector being quashed and the matter being re-determined. This was not an appropriate case in which to exercise the court’s discretion not to quash.
Peter Goatley (instructed by Addleshaw Goddard LLP) appeared for the claimant; the first defendant did not appear and was not represented; Saira Kabir Sheikh QC (instructed by LGSS Law Ltd) appeared for the second defendant.
Eileen O’Grady, barrister
