Town and country planning – Outline planning permission – Claimant applying to quash secretary of state’s decision to dismiss appeal against local planning authority’s refusal of outline planning permission – Whether secretary of state failing to identify nature and extent of conflict with neighbourhood plan – Whether national planning policy being applied to emerging development plan – Whether policy on prematurity being taken into account and applied – Whether policy on weight to be given to emerging plan being applied – Application granted
The claimant company applied for outline planning permission for 120 dwellings, a community facility/office space, a care home and retail units at Sayers Common, West Sussex. The second defendant local planning authority refused the application and the claimant appealed. A planning inspector recommended that the appeal be allowed and conditional planning permission granted. However, the first defendant secretary of state directed that he would decide the appeal himself because it involved proposals which raised important or novel issues of development control and/or legal difficulties. Although the first defendant agreed with the inspector’s assessment of the merits of the proposal, he dismissed the appeal because the proposal conflicted with, and was premature in relation to, the emerging neighbourhood plan, which provided for between 30 and 40 new dwellings (policy H4).
The claimant applied to quash that decision, under s 288 of the Town and Country Planning Act 1990. It contended that the first defendant had: (i) failed to identify the nature and extent of any conflict with the draft neighbourhood plan properly interpreted; (ii) failed to apply paragraph 49 of the National Planning Policy Framework (NPPF) (relevant policies for the supply of housing) to the emerging development plan; (iii) failed to take into account and apply his own policy on prematurity contained in the planning practice guidance (PPG); and (iv) failed to take into account and apply his own policy in relation to the weight to be given to an emerging plan contained in paragraph 216 of the NPPF, in particular, the second and third criteria of that policy, namely the extent to which there were unresolved objections to relevant policies in the draft plan and the degree of consistency of the policies with the NPPF or, alternatively, failed to give any reasons in relation thereto.
Held: The application was granted.
(1) The first defendant had treated the proposal as being in conflict with the scale of housing proposed in the plan but failed to weigh that conclusion against his findings that the scale and density of the proposal were acceptable for the village, the location was sustainable and the proposal would overcome any infrastructure constraints. In any event, the first defendant had increased the weight given to the policies in the draft plan because of an immaterial consideration, namely, the lack of any up-to-date objective assessment of housing needs against which to measure the proposals in that plan. Further, the first defendant had failed to take into account, or alternatively, to give any reasons in relation to, the claimant’s case that the weight to be attached to policy H4 should be reduced because it had imposed a cap on housing despite the absence of an up-to-date objective assessment of housing needs: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied. Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin); [2015] PLSCS 61 considered.
(2) It would be inappropriate to treat paragraph 49 of the NPPF as restricting the circumstances in which national policy lent additional support to a housing proposal because of the lack of a five-year land supply, to cases where the relevant policies for the supply of housing were contained in statutory, but not draft, development plans. Such a change in national policy regarding the importance of maintaining a five-year supply of housing land would require explicit language to that effect. The starting point was paragraph 49 rather than paragraph 14 which was of general application for the determination of planning applications. Once the correct interaction between paragraphs 14 and 49 was appreciated, in a case where a five-year supply of housing land did not exist, it did no violence to the language of paragraph 14 to treat the presumption in favour of sustainable development as weighing against housing supply policies, including those which restrained development, whether contained in statutory or draft development plans. Where a neighbourhood plan was being prepared so as to be in general conformity with a local plan, but a five-year supply of housing land did not exist, paragraph 49 applied to both the housing supply policies in both the adopted local plan and the draft neighbourhood plan, so that when a planning application for housing came to be determined the presumption in paragraph 14 would apply, subject to assessing the matters which might tell against the grant of planning permission and the weight to be attached to housing supply policies in each of the plans would need to be assessed and taken into account. The same principles applied where a local plan had not yet been adopted, a five-year supply of housing land for the district could not be shown, but a draft neighbourhood plan sought to lead in order to make provision for housing needs in a much smaller plan area. Accordingly, paragraphs 14 and 49 applied to the housing supply policies in a draft development plan, including a draft neighbourhood plan and should have been applied in the present case when assessing the weight to be attached to those policies in the plan and to any conflict with such policies: Crane v Secretary of State for Communities and Local Government applied. Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin); [2013] PLSCS 57, Hunston Properties Ltd v St Albans City and District Council [2013] EWCA Civ 1610; [2014] EGILR 7 and Solihull Metropolitan Borough Council v Gallagher Estates Ltd [2014] EWCA Civ 1610; [2014] PLSCS 360 considered.
(3) It had been wholly unsatisfactory for the first defendant to disagree with the inspector’s carefully reasoned recommendation that the appeal should be allowed by putting forward such sparse reasoning on prematurity as appeared in his decision letter. He had not given effect to the criteria in the PPG. When all the relevant circumstances were borne in mind, it was plain that the first defendant had not taken into account and applied his policy in the circumstances in which prematurity might justify a refusal of planning permission: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 and BDW Trading Ltd (t/a Barratt Homes) v Cheshire West & Chester Borough Council [2014] EWHC 1470 (Admin); [2014] PLSCS 151 applied. Veolia ES (UK) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 91 (Admin); [2015] PLSCS 22 considered.
(4) Substantial information had been placed before the first defendant which had resulted in the application of the second and third criteria in para 216 of the NPPF becoming principal important controversial issues for the first defendant to determine. It followed that the first defendant had been obliged to give reasons explaining how he had applied those criteria. The decision letter contained no such reasoning and revealed that the second and third criteria had not been applied at all. It could not be inferred that the decision on the weight to be given to the plan would have necessarily if the second and third criteria had been addressed.
Christopher Boyle QC (instructed by Russell-Cooke LLP) appeared for the claimant; Richard Honey (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read transcript: Woodcock v Secretary of State
