Elizabeth Soilleux v Secretary of State for Levelling Up Housing and Communities
[2023] EWHC 204 (Admin)
Mead Realisations Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor
12 February 2024
[2024] EWHC 279 (Admin)
High Court
Two housing developers challenged planning decisions based on flood risk rules. The court explained that the guidelines (NPPF and PPG) let decision-makers use their judgment on many factors, and the developers hadn't made all their best arguments at the earlier stage. So, the court backed the initial decisions.
Key Facts
- •Two claims challenged Inspectors' decisions dismissing appeals against planning permission refusals for residential developments.
- •Both cases involved the interpretation and application of the sequential test in national flood risk policy (NPPF, PPG).
- •Mead Realisations Ltd. challenged the Lynchmead decision (North Somerset).
- •Redrow Homes Ltd. challenged the Bushey decision (Hertsmere).
- •Key disputes centered on the interpretation of 'reasonably available sites' within the sequential test, the relationship between NPPF and PPG, and the relevance of housing need.
- •The claimants argued the Inspectors wrongly applied PPG, creating stricter requirements than the NPPF.
Legal Principles
PPG is subservient to the NPPF and cannot override it; it's guidance, not policy, though it can clarify or elaborate on NPPF policies.
R (Menston Action Group) v City of Bradford Metropolitan District Council [2016] PTSR 466; Solo Retail Limited v Torridge District Council [2019] EWHC 489; R (White Waltham Airfield Limited) v Royal Borough of Windsor and Maidenhead [2021] EWHC 3408 (Admin); Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2842 (Admin); R (Kinsey) v London Borough of Lewisham [2021] EWHC 1286 (Admin);
Development control is a policy decision exercising delegated power to decide what the public interest requires; national policy provides a framework for consistent decision-making but cannot fetter discretion.
R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295; R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923; Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 1865
The NPPF and PPG are not binding legal instruments, but their interpretation is a matter of law for the court; their application is for the decision-maker, reviewable on Wednesbury principles.
Tesco Stores Limited v Dundee City Council [2012] PTSR 983; Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 1865; R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931
In applying the sequential test, 'appropriateness' is a matter of judgment for the decision-maker, considering factors such as development type, size, timing, and need, with flexibility and realism for all parties.
Tesco Stores Limited v Dundee City Council [2012] PTSR 983; R (Aldergate Properties Limited) v Mansfield District Council [2016] EWHC 1670 (Admin)
Outcomes
Mead's claim dismissed.
The Inspector's application of the sequential test, considering the PPG's clarification of the NPPF, was lawful. The claimant failed to demonstrate specific need for the proposed development type or that the Inspector irrationally assessed site availability.
Redrow's claim dismissed.
While the Inspector's approach to smaller sites in the sequential test lacked sufficient consideration of Redrow's arguments on interconnected benefits, this error wasn't material. Further, Redrow failed to raise the housing need argument before the Inspector, preventing its consideration.
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