Legal Viewpoint: Council faulted on failure to mention core strategy

A recent High Court decision involving a housing appeal in Northamptonshire demonstrates that if you fail to raise a point during appeal proceedings, you cannot expect a court to overturn the decision if the inspector does not consider that point.

Daventry District Council challenged an inspector’s decision to grant permission primarily on the basis that she had not had regard to relevant policies in the West Northamptonshire Joint Core Strategy Local Plan, which supplemented policies in the existing local plan. When the application was initially refused, the core strategy was an emerging policy, but it was adopted by the council during the course of the appeal.

The council and the secretary of state agreed that, at the date of the appeal decision letter, the core strategy formed part of the development plan. Policy R1 of the core strategy, which set out the distribution of development, differed from the existing local plan. The inspector made no reference to the core strategy in the decision letter and there was nothing to suggest that she was even aware that it had been adopted. The parties agreed that the substantive policy change meant it could not be assumed that, if the inspector had addressed and applied the core strategy, planning permission would still have been granted.

The court had no difficulty in finding that there had been an error of law. It held that the core strategy was directly in point and the inspector had failed to comply with her statutory duty to determine the appeal in accordance with the development plan unless material considerations indicated otherwise.

Despite this error, the court refused to quash the decision. As the secretary of state had conceded that the inspector’s conclusion might have been different if the core strategy had been taken into account, it recognised that the circumstances of ?the case fell outside the normal rules for refusing relief, such as those set out in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1989].

However, referring to R (St James Homes Ltd) v Secretary of State for the Environment, Transport and the Regions [2001], the court noted that the conduct of the party seeking relief is a relevant matter to consider. In this case, it found that the council’s submissions were "wholly inadequate" in bringing the relevance of policy R1 to the inspector’s attention. It used its discretion to find that this failure precluded the authority’s entitlement to secure quashing of the permission.

Daventry District Council v Secretary of State for Communities and Local Government: Date: 6 May 2016; Ref: [2016] EWHC (Admin) 1555

Michael Greigg is a legal director at DLA Piper Scotland LLP

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