Policy Briefing: Secretary of state yields to judgment on obsolete policy

The secretary of state has conceded that an appeal inspector erred in deciding whether a policy was out of date. Jeremy Cahill and Jenny Wigley report..

London's Royal Courts of Justice
London's Royal Courts of Justice

Q What were the circumstances surrounding this case?

A In a consent order finalised at the end of October, the secretary of state agreed that an inspector’s decision to dismiss an appeal against refusal of outline planning permission for up 126 dwellings on a greenfield site on the edge of Evesham, Worcestershire, should be quashed.

This followed a High Court challenge brought by the appellants, BPF Developments, raising important points of principle about the application of the weighted balance in paragraph 14 of the National Planning Policy Framework (NPPF) in circumstances where a five-year supply of housing land has been established. The NPPF states that a balance in favour of sustainable development is triggered where "the development plan is absent, silent or relevant policies are out of date".

Q What were the developers’ grounds for challenge?

A The claimants argued that while the inspector had accepted that policy SR1 of the Wychavon Local Plan 2006, which set the housing requirement to March 2011, was "out of date", she wrongly construed it as "not relevant". As a result, they said, she erred in failing to apply the weighted balance in favour of development under paragraph 14.

They also argued that the inspector made errors of law and failed to respect the principle of consistent decision-making in finding that policy GD1, which set the locational strategy and development boundaries for new development to 2011, was not out of date. The secretary of state had found that this policy was out of date in another appeal in the district last year, they pointed out.

Q What happened when these claims came to court?

A At October’s court hearing, it became apparent that Mr Justice Holgate had serious concerns about the lawfulness of the inspector’s decision and, significantly, about her failure to apply paragraph 14 in circumstances where the local plan lacked a policy to meet objectively assessed needs beyond 2011.

The judge appeared to consider that the development plan should be construed as "silent" for the period under consideration, so the balance under paragraph 14 should have been triggered. However, he was careful to point out that just because paragraph 14 is triggered does not necessarily mean that out-of-date policies should be given no weight in the balance. He was critical of the inspector’s comment that to treat policy GD1 as out of date would "effectively be to sanction new development in the countryside, without regard to the quantified need for it".

The case was adjourned for the secretary of state and the council to consider their positions, rather than proceeding to full judgment. In the consent order, the secretary of state conceded that the inspector had erred in law in considering whether policy GD1 was out of date.

Q What should decision-makers learn from this outcome?

A The defendants’ concession over policy GD1, which restricted new development to within existing settlement boundaries, is welcome. It chimes with Mr Justice Gilbart’s comments earlier this year in another case involving the same local plan in Wychavon District Council v Secretary of State for Communities and Local Government [2015].

The defendants offered no concession on policy SR1 and the court gave no judgment in relation to it. However, in light of the comments of an experienced planning judge in open court, local authorities should take note that where a local plan is "silent" on up-to-date housing requirements, the prudent approach to housing applications would be to apply the weighted balance.

This does not mean a free-for-all, or that settlement boundaries should or can be ignored. It is down to decision-makers to determine what weight to give these or other restraint policies in the overall balance. But it does mean that the correct approach is to test a development against whether or not its adverse impacts, including any breaches of such policies, would "significantly and demonstrably outweigh" its benefits in line with the NPPF’s presumption in favour of sustainable development.

Jeremy Cahill QC and Jenny Wigley are barristers at No5 Chambers and acted for BFP Developments.

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