Deliverability doubts dismissed as basis for neighbourhood refusal

The secretary of state made a serious legal error in refusing planning permission for a new neighbourhood of up to 1,200 dwellings in Cheshire, the High Court has concluded.

The council had been unable to demonstrate a five-year supply of housing land. An inspector therefore applied the tilted balance in paragraph 11 of the NPPF to assess whether harm arising from the scheme significantly and demonstrably outweighed its benefits. He concluded (DCS Number 200-008-149) that the appellants had not proved that the proposal would have no adverse impact on the safety and efficiency of the highway network or on local air quality. He also found that the scheme would adversely affect the area’s character and in any event appeared to be incapable of being delivered. He recommended that the appeal should be dismissed.

The secretary of state accepted these conclusions. However, in his decision letter, he opined that the issue of the scheme’s delivery should be left for further consideration until it became capable of being implemented. The claimants argued that this misapplied the balancing exercise required under paragraph 11 by treating the absence of deliverability as a significant adverse effect and giving it even greater weight than the other factors identified by the inspector. By failing to set out the benefits against the harm, they argued, the secretary of state had not undertaken the appropriate balancing exercise required by paragraph 11(d)(ii).

Sir Duncan Ouseley agreed that while paragraph 11 contains some "oddities", there was no dispute that the tilted balance applied. He found the secretary of state’s decision irrational, in that he had considered the adverse effects that would occur if the scheme was implemented but had then apparently ignored the benefits that would flow from it.

The judge held that treating the scheme’s lack of deliverability as an adverse factor in itself, leading the secretary of state to conclude that its benefits should be discounted, was legally flawed because this approach would have required him to also discount the alleged harm. He noted that the inspector had not adopted this approach in his recommendation and found it insufficiently clear whether the secretary of state had simply meant to adopt the inspector’s conclusions. 

The judge also agreed with the claimants that the question of whether a development can be implemented is irrelevant to a decision as to whether to grant permission, in accordance with British Railways Board v Secretary of State for the Environment [1993]. He held that the issue of deliverability was not legally relevant to the refusal of planning permission, at least on the reasoning provided by the secretary of state.  As he could not be sure that the decision would have been the same without the muddled reasoning provided, he quashed the decision.

Satnam Millenium Ltd v Secretary of State for Housing, Communities and Local Government and Warrington Borough Council

Date: 8 October 2019

Ref: [2019] EWHC 2631 (Admin)

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