Planning permission – Appeal – National planning policy framework – Claimant local authority seeking to quash decision of defendant secretary of state allowing appeal against refusal of planning permission – Whether inspector misunderstanding or misapplying paragraph 14 of national planning policy framework (NPPF) – Application dismissed
The claimant local authority challenged a decision of an inspector appointed by the first defendant secretary of state whereby she allowed an appeal by the second defendant developer under section 78 of the Town and County Planning Act 1990 against the claimants’ refusal of permission of the second defendant’s application for planning permission for residential development of up to 120 dwellings and open space at a site off Crowell Road, Chinnor, South Oxfordshire.
The claimants contended, amongst other things, that the inspector had failed to understand or apply paragraph 14 of the national planning policy framework (NPPF) properly, in particular by wrongly describing the development plan as “silent” within the meaning of paragraph 14; and failed to apply the paragraph 14 issue consistently.
Paragraph 14 provided that at the heart of the NPPF was a presumption in favour of sustainable development. For planning-making, that meant that local planning authorities should positively seek opportunities to meet the development needs of their area. Local plans had to meet objectively assessed needs with sufficient flexibility to adapt to rapid change unless material considerations indicated otherwise.
Held: The application was dismissed.
(1) An inspector appointed to conduct a planning appeal had to have regard to the statutory development plan and to material considerations and determine the proposal in accordance with the development plan unless material considerations indicated otherwise: see section 70(1) of the 1990 Act and section 38(6) of the 2004 Act. He or she also had to apply national policy unless reasons for not doing so were given. 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: EC Gransden & Co Ltd v Secretary of State for the Environment [1987] 54 P & CR 86, Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 57 P & CR 306, Horsham District Council v Secretary of State for the Environment [1993] 1 PLR 81 and Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin), [2011] JPL 887 followed.
(2) While the second and third of the three possible shortcomings identified in paragraph 14 of the NPPF (the absence of a development plan, its silence, or its relevant policies having become out of date) were not the same, the latter two arose from the same issue, namely the degree of weight that could be attached to the policies in the development plan, which was essential given its status in section 70 TCPA 1990 and section 38(6) PCPA 2004. The reason in this context why an out of date policy could carry less or no weight was that circumstances had changed since its adoption, which could make it less relevant. A policy might be relevant, but the weight it carried was purely for the decision maker.
In the final analysis, the question for the decision maker was whether the development plan contained a body of policy relevant to the proposal being considered; and whether that body of policy was sufficient to enable the development to be judged acceptable or unacceptable in principle. The first question involved an identification of the policies in question, and their correct interpretation; the second involved the exercise of planning judgment on the practical effect of that body of policy on the making of the decision in issue. The judgment to be made was at the time of the decision. A development plan might not have been “silent” when adopted, but had become so. In the development plan at issue, the mechanism by which its housing requirement figures were intended to be translated into actual allocations was the development plan document (DPD) which the claimants had since abandoned. In some cases, it could be the second question that matters. Whether it did so depended on the circumstances and was a matter for the planning judgment of the decision maker.
(3) In the present case, the question whether the existence of the policies was enough to prevent the plan being silent involved questions of weight, and in particular the sufficiency of the policy/policies to enable consideration of the acceptability of a development. The inspector had considered carefully the policies in the development plan on housing. Her conclusion that there was a policy vacuum on the issue of site allocations in the larger villages and that the development plan was silent on the issue of where and how much housing should be allocated at Chinnor, was a planning judgment that was open to her. The fact that the claimants accepted that there would be a supply of at least 160 dwellings from peripheral sites in Chinnor made it difficult to accept that the claimants regarded the rather elderly local plan as being of any weight in the decision making process. Even if the court was wrong about the nature of the test of “silence”, on the facts of this case the relevant policies in the development plan were out of date, given the abandonment of the mechanism by which sites were to be allocated. It could not seriously be argued that the claimants had suffered any prejudice through what was at worst a mistake in the label to be attached to the reason why the development plan polices carried little weight: 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 [2014] EWHC 2636 (Admin), Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin); [2015] PLSCS 61, Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin), Woodcock Holdings Ltd v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin); [2016] PLSCS 149 and Dartford Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 649 (Admin) considered.
Mark Westmoreland Smith (instructed by Sharpe Pritchard, as agents for the Solicitor to South Oxfordshire District Council) appeared for the claimants; Mark Cook (instructed by Pinsent Mason, of Manchester) appeared for the second defendant; the first defendant did not appear and was not represented.
Eileen O’Grady, barrister
