Town and country planning – Planning permission – Neighbourhood plan – Local authority refusing claimant’s application for outline planning permission for housing development – Inspector dismissing appellant’s appeal – Claimant challenging inspector’s decision under section 288 of Town and Country Planning Act 1990 – Whether inspector misinterpreting neighbourhood plan policy – Whether inspector wrongly regarding policy as relevant to proposed development – Application granted
The claimant developer applied for outline planning permission for the development of up to 45 dwellings, including 40% affordable dwellings, infrastructure and open space on land east of Brington Road, Flore, Northamptonshire. All matters other than access were reserved. The second defendant local authority refused the application and an inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal under section 78 of the Town and Country Planning Act 1990.
The inspector’s overall conclusion was that the proposed development would result in a high level of harm by virtue of the appeal site’s location and would cause harm to the character and appearance of the surrounding area, which outweighed its benefits. The scheme would conflict with the development plan taken as a whole. There were no material considerations to indicate a decision made other than in accordance with the development plan.
The claimant applied to challenge the validity of the inspector’s decision under section 288 of the 1990 Act contending, amongst other things, that the inspector misinterpreted policy F4 of the Neighbourhood Plan (which stated that affordable housing and rural exception site developments outside the settlement boundaries should comprise no more than 10 dwellings) and was wrong to regard that policy as relevant to the proposed development. Further, his reasons for concluding that policy F4 was a relevant policy in his determination of the planning appeal were inadequate.
Held: The application was granted.
(1) The proper interpretation of a planning policy was ultimately a matter of law for the court. The application of relevant policy was for the inspector. By virtue of section 70(2) of the 1990 Act, in dealing with an application for planning permission, the decision-maker had to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. A failure properly to understand and apply relevant policy would constitute a failure to have regard to a material consideration, or amount to having regard to an immaterial consideration. When it was suggested that an inspector had failed to grasp a relevant policy one had to look at what they thought the important planning issues were and decide whether it appeared from the way that they dealt with them that the inspector must have misunderstood the policy in question: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643
It would often be obvious whether a particular policy was material to a particular planning application. In a case such as the present, where the materiality of a particular policy of the development to the determination of the planning application was in dispute between the applicant and the local planning authority, the inspector had to resolve that dispute on a proper understanding of that policy, if they were to fulfil the duty imposed by section 70(2) of the 1990 Act: Tesco Store Ltd v Dundee City Council [2012] PTSR 983
(2) A rural exception site was an established tool of planning policy for the delivery of affordable housing in rural areas to meet local housing need. The National Planning Policy Framework (December 2023) defined “rural exception sites” as: “Small sites used for affordable housing in perpetuity where sites would not normally be used for housing. Rural exception sites seek to address the needs of the local community by accommodating households who are either current residents or have an existing family or employment connection. A proportion of market homes may be allowed on the site at the local planning authorities discretion, for example where essential to enable the delivery of affordable units without grant funding”.
Policy F4 was a self-contained policy whose only purpose was to promulgate and apply the established national planning policy concept of rural exception sites to the context of neighbourhood planning in Flore. The inspector was wrong to regard policy F4 as relevant to his determination of the planning appeal before him. The proposed development did not seek to deliver a rural exception site. It sought to deliver a mix of open market and affordable housing to meet an identified need.
It followed that the inspector was wrong to find that the proposed development was in breach of policy F4. He was wrong to attribute harm to that breach and to give significant weight to policy F4 in drawing his overall conclusions that the proposed development would conflict with the development plan, taken as a whole.
(3) There would sometimes be circumstances in which a proposal for housing development, though it neither complied with nor offended the terms of any particular policy of the development plan, was nevertheless in conflict with the plan because it was manifestly incompatible with the relevant strategy in it. That might be a matter of natural and necessary inference from the relevant policies of the plan, read sensibly and as a whole. The effect of those policies might be that a proposal they did not explicitly support was also, inevitably, contrary to them. Whether that was so would depend on the particular context and, critically, the wording of the relevant policies, their objectives and their supporting text: Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669; [2019] PLSCS 74 and Chichester District Council v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 1640; [2020] 1 P&CR 9 considered.
(4) In the present case, there was neither a need nor justification for drawing any inferences from the terms of policy F4. On its true construction, policy F4 neither explicitly supported nor explicitly prohibited the proposed development. It simply did not apply to it.
It was clear from his reasoning that the inspector gave significant weight to what he saw as the proposed development’s conflict with policy F4. It could not safely be said that had he correctly approached his decision without regard to that policy which was irrelevant to his evaluation of the planning balance between competing beneficial and harmful effects of the proposed development, he would necessarily have drawn that balance and dismissed the claimant’s planning appeal.
Killian Garvey (instructed by Shakespeare Martineau LLP) appeared for the claimant; Charles Streeten (instructed by the Government Legal Department) appeared for the first defendant. The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
