Town and country planning – planning permission – National Planning Policy Framework (NPPF) – Claimant local authority applying to quash decision of planning inspector allowing appeal against refusal of planning permission for housing development – Whether paragraph 112 of NPPF being policy indicating “development should be restricted” within meaning of paragraph 14 – Application dismissed
The second defendant developer applied for outline planning permission for a development of up to 330 dwellings, with a new vehicular access, public open space and green infrastructure on land north of Haygate Road, Wellington, Shropshire. The site comprised some 15.2ha of gently undulating agricultural land, principally in arable use, with some trees and hedgerows. There were built-up areas to the east and south of the site and open countryside to the north. A Grade II listed mansion lay to the west, set in 25 ha of historic park and gardens. The Wellington Cricket Club had its ground and pavilion in the park. A public right of way ran across the site but there was no other public access.
The claimant local planning authority resolved to grant planning permission in May 2014, when it considered that it did not have a five year supply of deliverable housing land. The grant was subject to completion of an agreement under section 106 of the Town and Country Planning Act 1990. Before it was concluded, the claimants decided to re-consider their decision when they realised they could demonstrate a five year supply of deliverable housing land. The second defendant appealed to the first defendant secretary of state on the grounds of non-determination. Shortly after lodging its appeal, the developer submitted a second application for planning permission. The claimants gave putative reasons for refusing the first application and refused the second application.
An inspector appointed by the first defendant secretary of state allowed the second defendant’s appeal against that decision. He concluded that the adverse impacts of the proposal would not significantly and demonstrably outweigh the substantial benefits that would arise from the development.
The claimants applied under section 288 of the 1990 Act to quash the inspector’s decision contending, among other things, that the inspector had erred in law in rejecting the claimants’ submission that paragraph 112 of the National Planning Policy Framework (NPPF) ought to be treated as a policy which indicated that “development should be restricted” within the meaning of the second limb of the second bullet point on “decision-taking” in paragraph 14.
Held: The application was dismissed.
(1) Paragraph 112 could not be characterised as a policy which indicated that “development should be restricted” within the meaning of paragraph 14. The policy was simply an instruction (i) to “take into account” the economic and other benefits of the best and most versatile (BMV) agricultural land which did not confer any particular level of protection and (ii) to “prefer” the use of poorer quality land if significant development of agricultural land was necessary, which applied to all agricultural land, not just BMV land. It was not a prohibition on the use of BMV agricultural land, nor a restriction on development in principle; it did no more than to encourage the relocation of proposed development onto poorer quality agricultural land if available. The permissive language of paragraph 112 was very different to the language used in the “specific policies” of restraint identified in footnote 9.
(2) The inspector’s ultimate conclusion was correct. He was entitled to take into account the claimants’ approach to paragraph 112, when resolving to grant planning permission, in support of his interpretation of paragraph 112 and 14. The claimant’s decision to grant planning permission notwithstanding the loss of BMV agricultural land was capable of being a material consideration which the inspector was entitled to take into account in assessing the planning balance and deciding whether to grant planning permission. Previous decisions raising the same or similar issues were potentially relevant. The inspector had applied paragraph 112 in the overall planning balance and accorded only a modest amount of weight to the impact of the loss of BMV land. Much of the agricultural land surrounding Telford was BMV; no alternative site comprising poorer quality land had been put forward. So even if the inspector had treated paragraph 112 as a policy which restricted development under paragraph 14, and applied it without the weighted presumption in favour of the grant of permission, it seemed unlikely that, in the exercise of his planning judgment, he would have refused planning permission for that reason. He would have then gone on to consider paragraph 112, together with the other relevant factors, as part of the second balancing exercise, applying the weighted presumption in favour of granting permission as the development plan policies were out-of-date, just as he did in the decision under challenge. So, either way, the outcome would likely have been the same: Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] EWHC 421 (Admin); [2016] PLSCS 75 considered.
(3) The two stage approach which the inspector adopted in respect of the restrictive policy in paragraph 134 was appropriate, even though somewhat repetitive. In a case such as this, with multiple factors and policies to be considered, it was an effective way of applying the differing requirements in paragraph 14. The presumption weighted in favour of granting permission for development, set out in the second bullet point, should be initially dis-applied, as it would run contrary to the presumption against development contained in the restrictive policy. However, if after application of the restrictive policy, the outcome was in favour of development, then the weighted presumption in favour of development resurfaced and could be applied: R (Watermead Parish Council) v Aylesbury Vale District Council [2016] EWHC 624 (Admin) considered.
Timothy Jones (instructed by Telford and Wrekin Council) appeared for the claimants; Tim Buley (instructed by the Government Legal Department) appeared for the first defendant; Jonathan Easton (instructed by Irwin Mitchell) appeared for the second defendant.
Eileen O’Grady, barrister
