Gladman Developments Ltd v Secretary of State for Housing Communities And Local Government & Anor

Factual and Procedural Background

On 8th July 2016, the Claimants submitted an application to the Second Defendant seeking planning permission for a residential development of up to 135 dwellings, including up to 35% affordable housing, at Langford Road, Henlow, Bedfordshire. The application included proposals for structural planting, landscaping, public open space, a children's play area, flood mitigation, vehicular access points, and ancillary works. The Second Defendant refused the application on two grounds on 6th October 2016. The Claimants appealed under Section 78 of the Town and Country Planning Act 1990. The First Defendant appointed an Inspector who, on 16th August 2018, dismissed the appeal and refused planning permission.

By the time of the public inquiry, one reason for refusal had been resolved, leaving the sole issue as the effect of the proposed development on the character and appearance of the area, considered within the context of the Council's housing land supply situation and the weight to be given to any identified harm.

The appeal site was beyond the defined settlement boundary, making the proposal contrary to policy DM4 of the Central Bedfordshire Core Strategy and Development Management Policies (November 2009). The Claimants contended that this conflict should be afforded less weight or disregarded on grounds including an alleged lack of a five-year housing land supply and that policy DM4 was out of date. The Inspector rejected the contention regarding housing land supply and concluded that although there was some discrepancy between policy DM4 and the National Planning Policy Framework ("the Framework"), the policy's underlying objectives remained relevant, and it should be given moderate weight. Consequently, the tilted balance under paragraph 14 of the Framework was not engaged.

The Inspector further rejected the Claimants' other arguments for applying the tilted balance and dismissed the appeal, refusing planning permission.

The Claimants challenged the Inspector’s decision, focusing on the legal correctness of the Inspector’s approach to policy DM4’s consistency with the Framework and the weight attached to it, particularly in light of the recent Meppershall appeal decision, which found policy DM4 to be out of date and of limited weight.

The First Defendant conceded that the Inspector erred in his consideration of whether policy DM4 was out of date, leading to this judicial review challenge proceeding solely on that ground.

Legal Issues Presented

1. Whether the Inspector erred in law by failing to properly assess and give adequate reasons for departing from earlier appeal decisions, particularly the Meppershall appeal, concerning whether policy DM4 was out of date and the weight to be attached to it.
2. Whether the Inspector correctly applied the principles of consistency in decision-making as established in North Wiltshire DC v Secretary of State for the Environment and subsequent authorities.
3. Whether the Inspector correctly interpreted and applied the Court of Appeal’s judgment in Gladman Developments v Daventry District Council in assessing the consistency of policy DM4 with the Framework.
4. Whether the Inspector’s conclusion that policy DM4 was not out of date and should be afforded moderate weight was a lawful exercise of planning judgment.

Arguments of the Parties

Claimants' Arguments

• The Inspector failed to properly grapple with the reasoning of earlier Inspectors, particularly the Meppershall Inspector, who concluded that policy DM4 was out of date and of limited weight.
• The Inspector did not provide adequate reasons for departing from the Meppershall decision, merely stating a different conclusion without explanation.
• The Inspector failed to address key Framework provisions (paragraphs 17 and 113) and their application to policy DM4, including the hierarchical approach to countryside protection versus protecting countryside for its own sake.
• The Inspector's reference to the Court of Appeal’s Daventry decision was insufficient to justify departing from the Meppershall decision, as that judgment required fresh conclusions based on evidence at redetermination.
• The failure to properly assess and explain departure from prior decisions constituted an error of law.

Second Defendant's Arguments

• The question of whether policy DM4 was out of date and the weight to be attached to it was a matter of planning judgment for the Inspector.
• The Inspector rationally concluded that policy DM4 remained up to date, noting it was not purely restrictive and reflected the character of predominant land use.
• The Inspector reasonably found that DM4 was not being used to restrict suitable development, as evidenced by permissions granted despite the policy.
• Given the conflicting appeal decisions, it was not the Inspector’s role to resolve inconsistencies between them but to reach a rational judgment based on the evidence before him.
• As a matter of discretion, the Court should conclude the outcome would be the same on redetermination, so the decision should not be quashed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
North Wiltshire DC v Secretary of State for the Environment [1993] 65 P&CR 137	Importance of consistency in planning decisions; Inspectors must give reasons when departing from previous decisions on like cases.	The Court held that the principle applied and the Inspector failed to provide adequate reasons for departing from previous decisions, constituting an error of law.
Dunster Properties Limited v First Secretary of State [2007] EWCA Civ 236	Endorsed the principle from North Wiltshire regarding consistency and reasoned departure from prior decisions.	Supported the application of the consistency principle in the planning context.
R v on the application of Fox Strategic Land and Property Limited v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198; [2013] 1 P&CR 80	Reaffirmed the importance of giving reasons for departure from previous planning decisions.	Reinforced the requirement for Inspectors to explain departures from prior case law.
DLA Delivery Limited v Baroness Cumberlege of Newick [2018] EWCA Civ 1305	Clarified that materially indistinguishable cases require clear explanation for differing conclusions on policy status and application of tilted balance.	Applied the principle to emphasize the need for clear reasoning when diverging from prior policy interpretations.
Gladman Developments v Daventry District Council [2016] EWCA Civ 1146	Provided guidance on assessing consistency of development plan policies with the Framework and when policies are out of date.	The Court noted the Inspector's failure to properly apply paragraph 215 of the Framework and emphasized assessment of policy weight.
Cheshire East Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 892 (Admin)	Addressed the application of paragraph 47 of the Framework to decision-making and plan-making.	Referenced in discussion of the weight and relevance of policies in relation to housing supply.

Court's Reasoning and Analysis

The Court began by affirming that the principle of consistency in planning decisions, as established in North Wiltshire and endorsed in subsequent cases, was applicable. A previous Inspector's decision on the same issue regarding policy DM4 was a material consideration, and any departure required adequate reasons.

Examining the decision under challenge, the Court found the Inspector had failed to provide sufficient reasoning to justify departing from the detailed and reasoned conclusions of the Meppershall Inspector, who had thoroughly addressed the consistency of policy DM4 with the Framework and found it out of date and of limited weight.

The Court noted that the Inspector’s reference to the Daventry decision did not constitute adequate reasoning for departure, especially since that judgment required fresh evaluation on redetermination and was already considered by the Meppershall Inspector.

Further, the Inspector did not adequately address important Framework provisions, notably the inconsistency of policy DM4 with paragraph 17's fifth bullet point and paragraph 113, which were key to the Meppershall Inspector's conclusion that DM4 was out of date.

The Court rejected the notion that the existence of conflicting appeal decisions absolved the Inspector from applying the consistency principle. The Court also found that the Inspector’s reasoning regarding the Council’s ability to demonstrate a five-year housing land supply did not sufficiently engage with the argument that strict application of policy DM4 would frustrate achieving that supply.

Consequently, the Court concluded that the Inspector’s failure to provide adequate reasons for departing from prior decisions on the status of policy DM4 amounted to an error of law.

Regarding the Second Defendant’s argument that the Court should exercise discretion not to quash, the Court found that it could not be concluded that the outcome on redetermination would be the same, as the status of policy DM4 affected the application of the tilted balance under paragraph 14 of the Framework.

Holding and Implications

The Court held that the Inspector's decision was legally flawed due to inadequate reasoning for departing from prior appeal decisions, particularly the Meppershall appeal, on the question of whether policy DM4 was out of date.

The decision is QUASHED and the matter is remitted for redetermination in accordance with the Court’s guidance.

This ruling directly affects the parties by requiring reconsideration of the planning appeal with proper application of the consistency principle and adequate reasoning regarding policy DM4's status. The Court did not establish any new precedent beyond the application of existing principles to the facts of this case.