Town and country planning – Development – Planning permission – Claimant seeking outline planning permission for residential and associated development – Second defendant local authority dismissing application – Inspector appointed by first defendant for Secretary of State dismissing appeal – claimant applying to quash decision – Whether inspector misinterpreting and misapplying National Planning Policy Framework (NPPF) – Whether inspector failing to apply guidance on prematurity – Whether inspector making incorrect findings on air quality – Application dismissed
The claimant developers appealed, under section 78 of the Town and Country Planning Act 1990, against the failure of the second defendant local planning authority to give notice within the prescribed period on an application for outline planning permission for residential and associated development on land in Leicestershire. The appeal was recovered for the first defendant secretary of state’s determination, pursuant to section 79 and paragraph 3 of Schedule 6 to the 1990 Act.
An inspector appointed by the first defendant held a public local inquiry. The second defendants opposed the grant of planning permission. After the conclusion of the inquiry, the National Planning Policy Framework (NPPF) was issued in March 2012. An opportunity was given to make further written representations, which were taken into account by the inspector. The inspector recommended that the appeal be dismissed and planning permission refused. The first defendant agreed with the inspector’s recommendations and dismissed the appeal.
The claimants applied, under section 288 of the 1990 Act, to quash that decision. They contended, inter alia, that: (i) the first defendant and the inspector had misinterpreted and misapplied the NPPF by failing to apply the presumption in favour of sustainable development, to find that local plan policy E20 not to permit development which would adversely affect or diminish the open and undeveloped character of the land was out of date and to find that the policy was inconsistent with a regional plan, which required substantial provision of housing; (ii) they had failed properly to apply the guidance on prematurity; and (iii) wrongly interpreted the policies in the NPPF on air quality.
Held: The application was dismissed.
1) The task of reconciling different strands of planning policy on the facts of a particular case had been entrusted to the planning decision-maker. Such planning judgments would only be subject to review by the court on very limited grounds. In the presence case the inspector and the first defendant had directed themselves correctly by asking whether the proposed development had been sustainable development. They had made a legitimate planning judgment when they had concluded that the policy remained relevant and had not been out of date. Further, the policy did not conflict with the regional plan. It was clear that the inspector and the first defendant had gone beyond the terms of the policy and given considerable weight to the advantages of a development which would increase the supply of housing in the area, as required by the regional plan. When considering the extent to which Policy E20 was inconsistent with the NPPF, the claimants were correct to say that Policy E20 prevented housing development on the site, and so did not, of itself, reflect the countervailing advantages of development. However, on reading the report and the decision letter, it was clear that the inspector and the first defendant had gone beyond the terms of Policy E20 and given considerable weight to the advantages of a development which would increase the supply of housing in the area, as required by the regional plan: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
(2) Prematurity was not a legal concept, but a matter of planning judgment and planning policy which was essentially a matter for the decision-maker. It allowed a decision-maker, in effect, to postpone a decision relating to the grant of permission until what was otherwise a relevant emerging local planning policy had been settled. In the present case, the decision on prematurity had been a planning judgment, which could only be challenged on the basis of an error of law, not because the claimants disagreed with it on its merits. The inspector and the first defendant had not failed to have regard to the pressing need for housing, and the authority’s past and future proposals for addressing such need. Accordingly, the claimants had failed to establish any error of law in the decision on prematurity: Murphy v Secretary of State for Communities and Local Government [2012] EWHC 1198 (Admin) applied.
(3) The issue of air quality had been quintessentially an exercise of planning judgment, and the conclusions of the inspector and first defendant in that regard were unimpeachable. The claimants had failed to identify any error of law in their approach. The inspector had not been required to draft a more effective condition for the claimants to put forward and had given a sufficiently clear explanation for the rejection of the proposed condition.
Jeremy Cahill QC and Satnam Choongh (instructed by Bird Wilford & Sales, of Loughborough) appeared for the claimants; James Maurici QC (instructed by the Treasury Solicitor) for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
