Planning appeal – Localism Act 2011 – First defendant granting planning permission for two housing developments on appeal against non-determination of planning applications by claimant council – Claimants passing resolution indicating that they would have refused permission – Whether greater weight to be given to views of local authorities under 2011 Act than under previous planning regime – Whether grant of permission contrary to claimants’ views unlawful – Claim dismissed The claimant council received applications for planning permission for two developments proposed by the second and third defendants on land to the north and north-west of Bishop’s Cleve, Gloucestershire. The second defendant’s development was to include up to 450 dwellings while the third defendant sought permission for up to 550 dwellings. The claimants failed to determine the applications within the prescribed time limit and the second and third defendants appealed to the first defendant against that non-determination. By a decision letter issued in July 2012, the first defendant allowed the appeals and granted planning permission on the recommendation of a planning inspector, made following a public inquiry. The first defendant agreed with the inspector that, although the applications conflicted with the existing development plan, little weight should be given to the plan since it had an end date of 2011 and was outweighed by material considerations including the requirement to produce a five-year housing land supply as provided by PPS 3 and later the national planning policy framework (NPPF). He considered that little weight could be attached to a joint core strategy (JCS) on which the claimants were working with other local authorities, since it was at a very early stage and would not be prejudiced by the grant of permission for the second and third defendants’ proposals, which were needed to meet an immediate housing need. Meanwhile, the claimants formally resolved that they would have refused planning permission. They brought a claim under section 288 of the Town and Country Planning Act 1990 to challenge the lawfulness of the grant of planning permission. They contended that the new statutory regime of the Localism Act 2011 created a fundamental requirement that the claimants should take the lead in spatial planning for their area through their responsibility for establishing a local development plan by a process of consultation with the local community. They submitted that much greater priority should therefore be given to the views of local planning authorities than had been the case under the previous statutory regime and that the grant of permission by the first defendant, contrary to the claimants’ views, had undermined the democratic process. Held: The claim was dismissed. (1) Although there was a legislative presumption that any decision to grant or refuse permission would be made in accordance with the plan, that presumption could be rebutted if material considerations so indicated. The weight to be given to a development plan would depend on the extent to which it was up to date. A plan that was based on outdated information, or had expired without being replaced, was likely to command relatively little weight. Material considerations could include statements of policy contained in documents such as government circulars, planning policy guidance notes, planning policy statements, ministerial statements and advice issued on behalf of the minister by the chief planning officer, as well as the NPPF that had, since March 2012, replace many of the previous policy statements. The claimants had not yet produced the local development document required of them under the Planning and Compulsory Purchase Act 2004. The current development plan for the area consisted of a number of outdated documents produced prior to the regime of the 2004 Act, as well as a draft regional strategy that, although not yet revoked pursuant to section 109(3) of the 2011 Act, was unlikely ever be implemented. As a result, the existing plan was entitled to very little weight when planning applications were being considered; in other words, the presumption in favour of the existing development plan was easily rebutted. Both before and after the issue of the NPPF, the need to ensure a five-year supply of housing land was of significant importance. Under the NPPF, if such a supply could not be demonstrated, then relevant policies would be regarded as out of date, and therefore of little weight, and there would be a rebuttable presumption in favour of the grant of planning permission. Although planning permission should not be granted prematurely in circumstances where that would pre-empt or prejudice an emerging development plan, the mere fact that no plan had yet been adopted could not be allowed to prevent any new development. The weight to be given to an emerging plan would depend on its stage of preparation. Where the plan was at an early stage, a refusal of planning permission on prematurity grounds would rarely be justified, since that would cause delay in determining the future of the land in question. The inspector’s report and the first defendant’s decision in the instant case were the result of an entirely unexceptional application of the legal and policy principles set out above. They had reached conclusions to which they were entitled to come by applying well established principles and policies to the evidence, by a legitimate exercise of planning judgment. (2) The 2011 Act had not brought about any fundamental change in the proper approach to planning applications so as to vitiate the first defendant’s conclusions. Although the 2011 Act had made significant changes to the planning system, those changes did not eliminate the role of the first defendant in determining planning applications opposed by local planning authorities or abolish long-standing principles and policies, such as the need for a five-year housing land supply or the principle of prematurity as resolving the tension between individual planning applications and the more extended timescale needed for the formulation and adoption of local development plans. Local development plans had to be prepared with the objective of contributing to the achievement of sustainable development and had to be consistent with the principles and policies set out in the NPPF. Pending the adoption of such plans, individual planning applications would continue to be dealt with by applying existing principles. There was nothing to suggest that greater weight should now be accorded to the views of local authorities that did not have such a development plan, over and above the weight that would be appropriate under the long-established prematurity principle. There could be no rule that, in certain circumstances, the views of the local authority, not yet embodied in an adopted local plan, were entitled to greater weight than other material considerations. To lay down a rule as to the weight to be given to the views of the local authority, rather than leaving such matters to the planning judgment of the first defendant or his planning inspector, would contradict a fundamental principle of planning law: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72 applied. The 2011 Act contained nothing that could be regarded as enacting such a radical change. Kevin Leigh (instructed by the legal department of Tewkesbury Borough Council) appeared for the claimants; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; Jeremy Cahill QC and Celina Colquhoun (instructed by Brabners Chaffe Street LLP, of Liverpool) appeared for the second respondent; Ian Dove QC and Satnam Choongh (instructed by Osborne Clarke) appeared for the third defendant. Sally Dobson, barrister
Tewkesbury Borough Council v Secretary of State for Communities and Local Government and others
Planning appeal – Localism Act 2011 – First defendant granting planning permission for two housing developments on appeal against non-determination of planning applications by claimant council – Claimants passing resolution indicating that they would have refused permission – Whether greater weight to be given to views of local authorities under 2011 Act than under previous planning regime – Whether grant of permission contrary to claimants’ views unlawful – Claim dismissed The claimant council received applications for planning permission for two developments proposed by the second and third defendants on land to the north and north-west of Bishop’s Cleve, Gloucestershire. The second defendant’s development was to include up to 450 dwellings while the third defendant sought permission for up to 550 dwellings. The claimants failed to determine the applications within the prescribed time limit and the second and third defendants appealed to the first defendant against that non-determination. By a decision letter issued in July 2012, the first defendant allowed the appeals and granted planning permission on the recommendation of a planning inspector, made following a public inquiry. The first defendant agreed with the inspector that, although the applications conflicted with the existing development plan, little weight should be given to the plan since it had an end date of 2011 and was outweighed by material considerations including the requirement to produce a five-year housing land supply as provided by PPS 3 and later the national planning policy framework (NPPF). He considered that little weight could be attached to a joint core strategy (JCS) on which the claimants were working with other local authorities, since it was at a very early stage and would not be prejudiced by the grant of permission for the second and third defendants’ proposals, which were needed to meet an immediate housing need. Meanwhile, the claimants formally resolved that they would have refused planning permission. They brought a claim under section 288 of the Town and Country Planning Act 1990 to challenge the lawfulness of the grant of planning permission. They contended that the new statutory regime of the Localism Act 2011 created a fundamental requirement that the claimants should take the lead in spatial planning for their area through their responsibility for establishing a local development plan by a process of consultation with the local community. They submitted that much greater priority should therefore be given to the views of local planning authorities than had been the case under the previous statutory regime and that the grant of permission by the first defendant, contrary to the claimants’ views, had undermined the democratic process. Held: The claim was dismissed. (1) Although there was a legislative presumption that any decision to grant or refuse permission would be made in accordance with the plan, that presumption could be rebutted if material considerations so indicated. The weight to be given to a development plan would depend on the extent to which it was up to date. A plan that was based on outdated information, or had expired without being replaced, was likely to command relatively little weight. Material considerations could include statements of policy contained in documents such as government circulars, planning policy guidance notes, planning policy statements, ministerial statements and advice issued on behalf of the minister by the chief planning officer, as well as the NPPF that had, since March 2012, replace many of the previous policy statements. The claimants had not yet produced the local development document required of them under the Planning and Compulsory Purchase Act 2004. The current development plan for the area consisted of a number of outdated documents produced prior to the regime of the 2004 Act, as well as a draft regional strategy that, although not yet revoked pursuant to section 109(3) of the 2011 Act, was unlikely ever be implemented. As a result, the existing plan was entitled to very little weight when planning applications were being considered; in other words, the presumption in favour of the existing development plan was easily rebutted. Both before and after the issue of the NPPF, the need to ensure a five-year supply of housing land was of significant importance. Under the NPPF, if such a supply could not be demonstrated, then relevant policies would be regarded as out of date, and therefore of little weight, and there would be a rebuttable presumption in favour of the grant of planning permission. Although planning permission should not be granted prematurely in circumstances where that would pre-empt or prejudice an emerging development plan, the mere fact that no plan had yet been adopted could not be allowed to prevent any new development. The weight to be given to an emerging plan would depend on its stage of preparation. Where the plan was at an early stage, a refusal of planning permission on prematurity grounds would rarely be justified, since that would cause delay in determining the future of the land in question. The inspector’s report and the first defendant’s decision in the instant case were the result of an entirely unexceptional application of the legal and policy principles set out above. They had reached conclusions to which they were entitled to come by applying well established principles and policies to the evidence, by a legitimate exercise of planning judgment. (2) The 2011 Act had not brought about any fundamental change in the proper approach to planning applications so as to vitiate the first defendant’s conclusions. Although the 2011 Act had made significant changes to the planning system, those changes did not eliminate the role of the first defendant in determining planning applications opposed by local planning authorities or abolish long-standing principles and policies, such as the need for a five-year housing land supply or the principle of prematurity as resolving the tension between individual planning applications and the more extended timescale needed for the formulation and adoption of local development plans. Local development plans had to be prepared with the objective of contributing to the achievement of sustainable development and had to be consistent with the principles and policies set out in the NPPF. Pending the adoption of such plans, individual planning applications would continue to be dealt with by applying existing principles. There was nothing to suggest that greater weight should now be accorded to the views of local authorities that did not have such a development plan, over and above the weight that would be appropriate under the long-established prematurity principle. There could be no rule that, in certain circumstances, the views of the local authority, not yet embodied in an adopted local plan, were entitled to greater weight than other material considerations. To lay down a rule as to the weight to be given to the views of the local authority, rather than leaving such matters to the planning judgment of the first defendant or his planning inspector, would contradict a fundamental principle of planning law: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72 applied. The 2011 Act contained nothing that could be regarded as enacting such a radical change. Kevin Leigh (instructed by the legal department of Tewkesbury Borough Council) appeared for the claimants; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; Jeremy Cahill QC and Celina Colquhoun (instructed by Brabners Chaffe Street LLP, of Liverpool) appeared for the second respondent; Ian Dove QC and Satnam Choongh (instructed by Osborne Clarke) appeared for the third defendant. Sally Dobson, barrister
