Mid Suffolk District Council v Secretary of State for Levelling Up, Housing and Communities & Anor
[2024] EWHC 930 (Admin)
Basingstoke and Deane Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anor
25 July 2024
[2024] EWHC 1916 (Admin)
High Court
A council challenged a planning decision to approve a housing development. They argued the decision-maker wrongly considered that part of the local plan was outdated. The court said the decision-maker was right to consider this, and even if they hadn't, the development would still have been approved because the benefits outweighed the drawbacks.
Key Facts
- •Basingstoke and Deane Borough Council (BDBC) challenged the Secretary of State's decision to allow Bewley Homes plc's appeal for a hybrid planning permission on a 22.45ha site.
- •The development comprised 82 dwellings (detailed permission) and up to 188 dwellings, community facilities, and open space (outline permission).
- •The site was outside settlement boundaries in the countryside, conflicting with the Basingstoke and Deane Local Plan 2011-2029 (BDLP) and East Woodhay Neighbourhood Plan (EWNP) spatial policies.
- •BDBC argued the Inspector erred in considering the out-of-date nature of the BDLP's spatial strategy when assessing whether the proposal accorded with the development plan as a whole (first limb of s.38(6), PCPA 2004).
- •The BDLP's spatial strategy was deemed out-of-date due to its failure to deliver the planned housing numbers, despite being more than 5 years old and under review.
Legal Principles
Section 38(6) PCPA 2004 requires determinations to be made in accordance with the development plan unless material considerations indicate otherwise. This creates a presumption in favour of the plan.
PCPA 2004, s.38(6); City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447
In assessing whether a proposal accords with the development plan, the plan should be read as a whole. The relative importance of policies and the extent of compliance/conflict are relevant factors. The datedness of policies is a relevant factor to be considered.
R (Milne) v Rochdale Metropolitan Borough Council (2001) 81 P&CR 27; Tesco Stores Ltd v Dundee City Council [2012] PTSR 983; BDW Trading Limited v Secretary of State for Communities and Local Government [2017] PTSR 1337
The out-of-datedness of a policy is a relevant consideration in determining whether a proposal accords with the development plan as a whole. This can be considered within the context of the first limb of s.38(6).
City of Edinburgh [1997] 1 WLR 1458E; This case established that the datedness of a local plan policy is relevant.
The NPPF is a material consideration. The weight given to it, and the balance between the NPPF and the development plan, is a matter of judgment for the decision-maker.
TCPA 1990, s.70(2); R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295
The presumption in favour of sustainable development (NPPF) and the priority for the development plan (s.38(6) PCPA 2004) can be applied together in a single balancing exercise.
Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government [2021] PTSR 1450
Section 288 TCPA 1990 allows for judicial review. The court will not intervene unless the decision-maker made an error of law.
TCPA 1990, s.288; Simplex GE (Holdings) Limited v Secretary of State for the Environment [2017] PTSR 1041
Outcomes
Claim dismissed.
The Inspector did not err in law. His consideration of the out-of-date spatial strategy was appropriate within the context of the overall balancing exercise. Even if the Inspector had not considered the out-of-date nature of the spatial strategy when applying the first limb of s.38(6), the application of the second limb of s.38(6), considering all material considerations would have led to the same outcome.
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