[2013] EWHC 2074 (Admin)
[2013] PLSCS 211
Town and country planning
Planning permission
Stratford on Avon District Council v Secretary of State for Communities and Local Government
Administrative Court
Hickinbottom J
18 July 2013
Town and country planning – Development – Planning permission – Developers seeking outline planning permission for development – Claimant local authority refusing permission – Defendant secretary of state allowing appeal on basis of inspector’s recommendations – Claimant applying for judicial review of defendant’s decision – Whether inspector failing to determine housing requirement in line with national policy – Whether inspector ensuring public participation in planning process and properly applying guidance on emerging plans – Application dismissed
In October 2009, the first and second interested parties (the developers) applied to the claimant local authority for outline planning permission for a development of up to 800 dwellings, a mixed use local centre, highway and green infrastructure, and various associated works near Shottery to the west of Stratford-upon-Avon. The developers appealed against the refusal of their application. Following a public inquiry, an inspector appointed by the defendant secretary of state produced a report recommending that permission should be granted. The inspector found that the housing land requirement for the district over a 20-year period was 11,000 to 12,000 homes and that a shortfall against that figure meant that there was a presumption in favour of permitting the development, against which he weighed the adverse environmental and economic impacts. In October 2012, the defendant granted planning permission subject to conditions on the basis of the inspector’s recommendation.
The claimant applied to quash that decision under section 288 of the Town and Country Planning Act 1990, contending that the inspector had unlawfully: determined a housing requirement for the district that failed to comply with national policy as contained within the National Planning Policy Framework (NPPF); and (ii) failed to take into account the UK’s obligations pursuant to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) to ensure effective public participation in the plan-making process and properly apply national guidance in relation to emerging plans.
Held: The application was dismissed.
(1) A planning decision-maker had to take into account all material considerations pursuant to section 70 of the Town and Country Planning Act 1990. Equally, he was not to take into account anything that was irrelevant. However, the weight to be given to material considerations was exclusively a matter of planning judgment for the decision-maker, who was entitled to give a material consideration whatever weight, if any, he considered appropriate. Material considerations in this context included statements of central government policy set out in planning guidance notes and statements and, since March 2012, the NPPF which replaced many earlier policy documents. The NPPF became effective shortly before the inspector’s public inquiry in this case and before his report and the defendant’s decision challenged in the present claim. Thus the parties had made their representations to the inspector and he had prepared his report, rightly, on the basis of the NPPF. Any local guidance was also a material consideration.
Section 70(2) of the 1990 Act expressly provided that the development plan was a material consideration, defined in section 38 of the Planning and Compulsory Purchase Act 2004 to include development plan documents. Such documents were required to go through a rigorous process, including public consultation and thereafter independent examination to determine whether they satisfy identified statutory provisions and regulations, and whether they were sound, i.e. positively prepared, justified, effective and consistent with national policy. The examiner had to make a recommendation as to any development plan documents he had examined. Before doing so, he had to consider any representations or objections made. In a town and country planning context, plans and strategies were necessarily the subject of regular review and alteration, as policy and other variables change. Where a plan was going through the rigorous and often lengthy process, that emerging plan was also a material consideration.
In the present case, for the purposes of responding to the appeal, the inspector had been required to assess unmet housing need that had required him to assess housing requirements on the basis of the evidence before him. He had concluded that the figure of 8,000 preferred by the authority had not been sufficiently evidence based and that, on all the evidence before him, the requirement for the 20-year period had been 11,000 to 12,000. The inspector had had at least adequate reason for that assessment. That analysis and conclusion were unimpeachable as a matter of law.
(2) The Planning System General Principles (PSGPs) and the Aarhus Convention required the decision-maker, and the inspector on his inquiry in this case, to make a planning assessment on the application, taking into account the emerging plan in accordance with the guidance in the NPPF and PSGPs. There could be no doubt that the inspector had fully appreciated that task. He had identified the appropriate provisions of the PSGPs and the obligations of the Aarhus Convention only applied because he identified them as being put before him and applicable to this case. Accordingly, the inspector’s analysis, his approach to the guidance in the NPPF and the PSGPs, and his conclusion, were again unimpeachable as a matter of law.
Nor did the Aarhus Convention require more. Interested members of the public had every opportunity to participate in all aspects of the development plan and changes to it, and in the decision-making process for all specific decisions, including in respect of the site. They had every opportunity to participate in the decision-making process that led to the inspector determining that the weight he should give to the emerging plan was relatively little, and to his determination that other factors outweighed the potential harm to the emerging plan caused by this development. The Aarhus Convention did not require a blanket stop to be put on development that might adversely impact on future policy; nor could it be used as a weapon for those who wish to inhibit development, in the hope that planning policy would change in the future to one which was more in line with their wishes. The convention, and the relevant national guidance, required the decision-maker in any specific planning application to balance emerging policy with other material considerations. In this case, the inspector and the defendant, who had adopted his analysis and conclusion on the point, had conducted that analysis properly and lawfully.
Paul Cairnes and Gordon Wignall (instructed by Stratford on Avon District Council Legal Services) appeared for the claimants; James Maurici QC and Richard Turney (instructed by the Treasury Solicitor) appealed for the defendant; Thomas Hill QC and Philippa Jackson (instructed by Squire Sanders (UK) LLP) appeared for the first and second interested parties; The third interested party did not appear and was not represented.
Eileen O’Grady, barrister
