Homes approval on unallocated village site confirmed

An inspector made no legal error in assessing whether a proposal for 34 dwellings outside a West Sussex village conflicted with an adopted neighbourhood plan, appeal judges have ruled.

The district council had refused permission on the basis that the proposal was contrary to paragraph 198 of the 2012 NPPF, which stated that planning permission should not normally be granted for schemes conflicting with a neighbourhood plan that had been brought into force. On appeal, the inspector (DCS Number 200-007-945) agreed that there was some conflict with the adopted local plan and the scheme did not accord with the aims of the neighbourhood plan.

However, having regard to the council’s inability to demonstrate a five-year supply of housing land, he decided that the benefits outweighed the adverse effects and granted permission. In upholding this decision, the High Court ruled that while the scheme conflicted with the aims of the neighbourhood plan, this document said nothing, either positively or negatively, about development outside the settlement boundary.

In addressing the council’s appeal against this decision, Lord Justice Lindblom held that the interpretation of planning policy is ultimately a matter for the courts, in accordance with Tesco Stores Ltd v Dundee City Council [2012]. Section 38(6) of the Planning and Compulsory Purchase Act 2004, he noted, created a statutory presumption in favour of the development plan, so the courts should only intervene where a decision-maker has fallen into error.

It is often the case, the judge mused, that a housing development complies with some planning policies and not others and in certain circumstances conflict could arise where a scheme is manifestly incompatible with the relevant strategy. In his view, the inspector’s conclusion that the neighbourhood plan did not express a presumption against development outside the settlement boundary was indisputable. He heard that the inspector had agreed with the council that the proposal did not accord with the aims of the neighbourhood plan in terms of new sites allocated for housing development, but had nevertheless concluded that the scale of the proposal was not at odds with the overall spatial development strategy. 

In the court’s view, the inspector had not overlooked advice in paragraph 198 of the NPPF. He had correctly concluded that, since the proposal was not supported by the neighbourhood plan because the site was not allocated for development, a conflict with the development plan existed. He had then assessed the planning balance, leading him to conclude that the harm caused did not significantly and demonstrably outweigh the scheme’s benefits. His reasoning was impeccable, the court held.

Chichester District Council v Secretary of State for Housing, Communities and Local Government and Beechcroft Land Ltd

Date: 9 October 2019

Ref: [2019] EWCA Civ 1640


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