Factual and Procedural Background
A site of approximately 4.4 hectares located between two villages in Leicestershire has been proposed multiple times for housing development, with all previous attempts failing. The claimant, Company A, sought planning permission to build 91 houses on this site but was refused by the local planning authority, Company B. An inspector appointed by the Secretary of State dismissed Company A's appeal against this refusal following an inquiry held in December 2012, with the decision letter issued in January 2013. Company A then applied under section 288 of the Town and Country Planning Act 1990 to challenge the inspector’s decision.
Legal Issues Presented
- Whether the inspector failed to apply or explain the application of paragraph 14 of the National Planning Policy Framework (NPPF) concerning decision-making where the development plan is "absent" or "silent".
- Whether the inspector failed to understand and adequately consider evidence and submissions regarding the five-year supply of housing land, and whether his reasons on this matter were adequate.
- Whether the inspector failed to apply or explain the application of Government policy on the prematurity of development proposals.
- Whether the inspector failed to properly consider material and immaterial considerations in relation to the effect of the proposed development on the Green Wedge and the weight given to Policy 9 of the core strategy.
- Whether the inspector failed to address the contention that the proposed development constituted sustainable development under government policy, rendering Policy 9 out of date and triggering a presumption in favour of planning permission.
Arguments of the Parties
Appellant's Arguments
- The development plan was either "absent" or "silent" regarding the allocation of land for the required housing in the village, thus engaging the presumption in favour of sustainable development under paragraph 14 of the NPPF.
- The local planning authority did not have a demonstrable five-year supply of deliverable housing land, as required by paragraphs 47 and 49 of the NPPF, due to factors including the method of calculating supply, the buffer size, and discounts on large sites.
- The inspector failed to apply government policy on prematurity correctly, not giving adequate weight to the emerging Site Allocations Development Plan Document (DPD) and the limited weight it should carry at the consultation stage.
- The inspector failed to properly consider changed circumstances since the previous appeal decision regarding the Green Wedge and the weight to be given to Policy 9 of the core strategy.
- The proposed development was sustainable development and Policy 9 was out of date, requiring the inspector to apply the presumption in favour of granting planning permission under paragraph 14 of the NPPF.
Respondents' Arguments
- The core strategy was neither absent nor silent on housing development; it set out the amount of housing to be provided and policies governing acceptable development locations, including Policy 9 restricting housing in the Green Wedge.
- The Council had demonstrated a five-year supply of housing land using the Liverpool method of calculation, which was appropriate in the circumstances, and the buffer of 5% was justified given the lack of persistent under-delivery.
- The inspector properly exercised planning judgment on prematurity, concluding that granting permission would pre-empt the plan-making process and undermine public confidence, consistent with government guidance.
- The inspector's assessment of the Green Wedge was consistent with previous decisions and planning policies; the weight attached to emerging plans and reviews was appropriately limited given their stage of preparation.
- The inspector correctly found that the development plan, including Policy 9, was up to date and that the proposal conflicted with it; therefore, the presumption in paragraph 14 of the NPPF did not apply.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26 |
Decision letters must be construed flexibly; inspectors need not rehearse every argument in detail. |
Supported the principle that inspectors’ reasons need only address principal issues clearly. |
| South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953 |
Reasons for appeal decisions must be intelligible and adequate to show conclusions on principal controversial issues. |
Confirmed that reasons need only address main issues, not every material consideration. |
| Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 |
Planning authorities have discretion in weighing material considerations, subject to avoiding irrationality. |
Reinforced that planning judgment is for decision-makers, not courts. |
| Newsmith v Secretary of State for [2001] EWHC Admin 74 |
Section 288 applications do not provide a review of planning merits. |
Clarified the limited scope of judicial review of planning decisions. |
| Tesco Stores v Dundee City Council [2012] PTSR 983 |
Planning policies are interpreted objectively; failure to properly apply policy may be a material error. |
Guided interpretation of planning policies in judicial review context. |
| South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80 |
Whether an inspector misunderstood policy is assessed by examining their treatment of important planning issues. |
Applied to assess alleged misunderstanding of planning policy. |
| Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) |
Non-mention of a policy does not necessarily mean it was ignored if the decision-maker is presumed familiar with national policy. |
Supported presumption of inspector’s awareness of relevant policy despite omission. |
| Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6 |
Consistency in decision-making is important but inspectors must exercise their own judgment. |
Confirmed that like cases need not always be decided alike. |
| Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin) |
Weight to be given to a development plan depends on how up to date it is. |
Applied to assess weight of core strategy in light of housing supply. |
| Hunston v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610 |
Local planning authorities must meet full, objectively assessed housing needs consistent with the NPPF. |
Clarified approach to assessing housing land supply and need. |
| City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 |
Material considerations may outweigh the development plan where justified. |
Supported balancing exercise in planning decisions. |
| R. (on the application of Spelthorne Borough Council) v Secretary of State for the Environment, Transport and the Regions [2001] 82 P. & C.R. 10 |
Predictions for future housing supply involve planning judgment and assumptions. |
Recognized the non-mathematical nature of housing supply assessments. |
| Stratford-upon-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin) |
Housing need calculations involve planning judgment and complex material factors. |
Supported the exercise of planning judgment in housing supply assessments. |
| William Davis v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin) |
Prematurity is a planning judgment and can only be challenged on error of law. |
Confirmed limited judicial review of prematurity decisions. |
| Murphy v Secretary of State for Communities and Local Government [2012] EWHC 1198 (Admin) |
Prematurity decisions are planning judgments. |
Supported the approach in prematurity cases. |
| Save Our Parkland Appeal Ltd. v East Devon District Council [2013] EWHC 22 (Admin) |
Plan-making is a complex, lengthy process; prematurity refusals must be consistent with national policy. |
Illustrated the context for prematurity decisions. |
| Cotswold District Council v Secretary of State for Communities and Local Government [2013] EWHC 3719 |
Inspector’s judgment on lapse rates and discounts on housing supply is a matter of planning judgment. |
Affirmed the role of inspector’s judgment on housing supply calculations. |
| Colman v Secretary of State for Communities and Local Government [2013] EWHC 1138 (Admin) |
Planning policies inconsistent with the NPPF’s cost/benefit approach may be out of date. |
Discussed consistency of development plan policies with the NPPF. |
Court's Reasoning and Analysis
The court carefully examined the inspector's decision letter and the evidence presented at the inquiry, focusing on the application of the National Planning Policy Framework (NPPF) and relevant development plan policies. It considered the meaning of "absent" and "silent" in paragraph 14 of the NPPF and found that the development plan was neither absent nor silent, as it included Policy 8 setting housing targets and Policy 9 restricting housing in the Green Wedge. The inspector had properly applied these policies and made an informed planning judgment.
Regarding the five-year housing land supply, the court acknowledged the complexities and planning judgments involved. The inspector's preference for the Liverpool method of calculation was reasonable given the local circumstances and consistent with the core strategy inspector's expectations. The court found no error in the inspector’s choice between competing methods, nor in his rejection of the higher buffer advocated by the appellant.
However, the court identified a significant flaw in the inspector's failure to address the appellant's evidence and submissions concerning a 10% discount on the delivery of housing from large sites. This discount was a discrete and important factor distinct from the buffer, and the inspector did not explicitly consider or explain his position on it. Given the tightness of the five-year supply calculation, this omission was material and could have affected the outcome.
On prematurity, the court held that the inspector properly exercised planning judgment consistent with government guidance, considering the stage of the emerging Site Allocations DPD and the scale of the proposed development. The refusal on prematurity grounds was lawful and justified by the inspector's reasoning.
Concerning the Green Wedge, the court found that the inspector’s assessment was consistent with previous decisions and that he properly considered the evidence on the site’s contribution to the Green Wedge, including the ongoing review process. The inspector’s conclusion that the development would harm the Green Wedge and conflict with Policy 9 was a proper exercise of planning judgment.
Finally, on the issue of sustainable development, the court determined that the inspector correctly found the development plan, including Policy 9, to be up to date and applied it accordingly. The presumption in paragraph 14 of the NPPF was not engaged. The inspector's conclusion that the development would not constitute sustainable development was implicit in his findings and did not require further elaboration.
Holding and Implications
The court's final decision was to QUASH the inspector's decision and to remit the appeal for redetermination by the Secretary of State. This was because the inspector failed to address a critical issue—the 10% discount on housing delivery from large sites—in his assessment of the five-year housing land supply, which could have materially influenced the outcome.
The decision directly affects the parties by requiring reconsideration of the appeal with proper consideration of all relevant evidence on housing supply. The court did not establish new legal precedent but reaffirmed the importance of thorough and clear reasoning in planning decisions, particularly regarding housing land supply calculations and the application of national policy.