Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MRS JUSTICE LANG DBE
Between :
KEITH LANGMEAD LIMITED | Claimant |
- and - | |
(1)SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) ARUN DISTRICT COUNCIL | Defendants |
John Litton QC and Graeme Keen (instructed by Irwin Mitchell LLP) for the Claimant
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 21 & 22 March 2017
Judgment
Mrs Justice Lang :
The Claimant applies under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash the decision of the First Defendant (“the Secretary of State”), dated 13 September 2016, dismissing its appeal against the refusal by Arun District Council (“the Council”) to grant outline planning permission for a development of up to 100 dwellings on land to the south of Ford Lane, Yapton, West Sussex.
An Inspector (Mr D. Nicholson) appointed by the Secretary of State held an Inquiry on 7 to 10 July 2015 and issued a Report, dated 7 October 2015 (hereinafter “IR”). The Inspector recommended that the appeal should be allowed and planning permission granted. However, the Secretary of State disagreed with the Inspector, and dismissed the appeal. The Secretary of State’s conclusions, insofar as they are material to this challenge, were set out in his Decision Letter (“DL”) as follows:
“33. Having regard to section 38(6) of the Planning and Compulsory Purchase Act 2004, the Secretary of State concludes that, for the reasons outlined above, the appeal proposal is not in accordance with the Development Plan as a whole, including the Neighbourhood Plan, given the conflicts he finds with policies BB1, E1, GEN2 and GEN3. He has therefore gone onto consider whether there are any material considerations which might nevertheless justify allowing the appeal. The district does not have a 5 year supply of deliverable housing sites so paragraph 49 of the Framework is engaged and permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework when taken as a whole.”
….
“36. The Secretary of State has noted the Inspector’s conclusions at IR11.51 and IR11.55. However, he does not agree, given his findings on neighbourhood planning. As such, he weighs the harms caused by conflict with the YNP and the provisions of paragraph 198 of the Framework against the benefits of the proposal, as set out by the Neighbourhood Planning Guidance he has issued. He gives very substantial weight to this conflict. As such he concludes that the proposal does not comply with the social element of sustainability, and he gives very substantial weight to this against the proposal.
37. The Secretary of State gives significant weight to the benefits of the provision of housing, and further significant weight to the provision of affordable housing. He also gives moderate weight to the fact that the proposed development is in a sustainable location.
38. Against this he gives very substantial weight to the conflict with YNP policy BB1, in line with the provisions of paragraph 198 of the Framework, given his conclusions on neighbourhood planning. He gives limited weight to the adverse impact to the character and appearance of the field, and further limited weight to the loss of agricultural land. He gives moderate weigh to the conflict with ADLP policies GEN1 and GEN2.
39. He therefore concludes that the identified adverse impacts of this proposal would significantly and demonstrably outweigh the identified benefits when assessed against the policies in the Framework taken as a whole. The Secretary of State concludes that the appeal should fail.”
On 13 December 2016, Dove J. granted the Claimant permission to proceed with a statutory review under section 288 TCPA 1990.
The Claimant’s grounds may be summarised as follows:
The Secretary of State misunderstood and misinterpreted the National Planning Policy Framework (“NPPF”).
The Secretary of State failed to apply the NPPF as a whole.
The Secretary of State failed to take account of a material change in circumstances and/or investigate it.
The Secretary of State failed to take into account other material considerations, namely, the Independent Examiner’s reservations about the Yapton Neighbourhood Plan (“YNP”).
The Secretary of State’s decision was internally inconsistent with regard to the weight given to policies in the Arun District Local Plan (“ADLP”) and the YNP.
The Secretary of State’s conclusion that Policy BB1 of the YNP should be given substantial weight was irrational.
The Secretary of State failed to give adequate reasons for his decision.
Legal and policy framework
(i) Applications under section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions[2001] EWHC Admin 74, at [6]:
“An application under section 288 is not an opportunity for areview of the planning merits…..”
A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993)66 P & CR 83.
(ii) Decision-making
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise. Section 70(2) TCPA 1990 provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
The duty under the equivalent Scottish provision was explained by Lord Clyde in Edinburgh City Council v Secretary of State for Scotland[1997] 1 W.L.R. 1447, at 1459:
“In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.”
This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, in which it rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. Development plans should be interpreted objectively, in accordance with the language used, read in its proper context. They should be followed unless there is good reason to depart from them.
Lord Reed re-affirmed well-established principles on the requirement for the planning authority to make an exercise of judgment, particularly where planning policies are in conflict, saying at [19]:
“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment[1995] 1 WLR 659, 780 per Lord Hoffmann)…..”
These general principles also apply to other planning decision-makers, including the determination of an appeal by the Secretary of State.
(iii) NPPF
The Court of Appeal has given guidance on the NPPF in Suffolk Coastal District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] 2 P & CR 1 where Lindblom LJ said as follows:
“9. The Government’s commitment to a “plan led” planning system is apparent throughout the NPPF. Paragraph 2 in the “Introduction” acknowledges the statutory presumption in favour of the development plan in s.38(6) of the Planning and Compulsory Purchase Act 2004, and the status of the NPPF as another material consideration:
“Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The [NPPF] must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions. … .”
There are several other references to the “plan-led” system: for example, in para.17, which sets out 12 “core land-use planning principles” that “should underpin both plan-making and decision-taking”. The first of these “core” principles is that planning should be “… genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area”. It adds that “[plans] should be kept up-to-date …” and “should provide a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency”.”
…..
“12. Under the heading “The presumption in favour of sustainable development”, para.12 acknowledges that the NPPF “does not change the statutory status of the development plan as the starting point for decision making”. It says that “[proposed] development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise”. It adds that “[it] is highly desirable that local planning authorities should have an up-to-date plan in place”. Paragraph 13 confirms that the NPPF “constitutes guidance for local planning authorities and decision-takers both in drawing up plans and as a material consideration in determining applications”. Paragraph 14 explains how the “presumption in favour of sustainable development” is to be applied…..”
…..
“42. The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory “presumption in favour of the development plan”, as Lord Hope described it in Edinburgh City Council v Secretary of State for Scotland[1997] 1 W.L.R. 1447 (at 1450B–G). Under s.70(2) of the 1990 Act and s.38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the “presumption in favour of sustainable development”, do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework—as the NPPF itself acknowledges, for example, in para.12 (see [12] above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense.”
…..
“46. We must emphasise here that the policies in paras 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 W.L.R. 759 at 780F-H). Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is “out-of-date” should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or dis-applied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.
47. One may, of course, infer from para.49 of the NPPF that in the Government's view the weight to be given to out-of-date policies for the supply of housing will normally be less than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy—such as the protection of a “green wedge” or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in para.49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment (see [70]–[75] of Lindblom J's judgment in Crane, at [71] and [74] of Lindblom J's judgment in Phides, and [87], [105], [108] and [115] of Holgate J's judgment in Woodcock Holdings Ltd v Secretary of State for Communities and Local Government and Mid-Sussex DC[2015] EWHC 1173 (Admin)).”
(iv) Neighbourhood Plans
The statutory scheme for neighbourhood plans was summarised by Lindblom LJ in R (on the application of DLA Delivery Ltd) v Lewes District Council & Anor [2017] EWCA Civ 58:
“4 Neighbourhood planning was an important part of the coalition Government’s “localism” agenda. The provisions for the preparation of a “neighbourhood development plan” – in sections 38A, 38B and 38C of the 2004 Act and Schedule 4B to the 1990 Act – were introduced by the Localism Act 2011 (see the first instance judgment inCrane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin),at paragraphs 1 and 6). Section 38(A)(2) of the 2004 Act defines a neighbourhood development plan as “a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan”. Once made, a neighbourhood development plan becomes part of the development plan (section 38(3)(c) of the 2004 Act), in accordance with which planning applications must be determined unless material considerations indicate otherwise (section 38(6)).
5 Where a neighbourhood development plan is to be prepared, a “qualifying body” must make an application for the designation of an area as a “neighbourhood area” (Part 2 of the Neighbourhood Planning (General) Regulations 2012 (“the 2012 regulations”)). The local planning authority must assist in this process (paragraph 3 of Schedule 4B to the 1990 Act). The neighbourhood development plan, once prepared, must be consulted upon under regulation 14 of the 2012 regulations, submitted to the local planning authority under regulation 15, and publicized by the local planning authority under regulation 16. If the local planning authority considers that the requirements of paragraph 6 of Schedule 4B have been complied with, it must submit the “draft neighbourhood development order” for examination under paragraph 7. The examiner's remit is relatively limited (see the judgment of Holgate J. inWoodcock Holdings Ltd. v Secretary of State for Communities and Local Government[2015] EWHC 1173 (Admin), at paragraphs 61, 62, 132 and 133, and the judgment of Supperstone J. inBDW Trading Ltd. v Cheshire West and Chester Borough Council[2014] EWHC 1470 (Admin), at paragraphs 83 and 84). He must consider whether the draft order meets the “basic conditions” – which do not include the question of whether the neighbourhood development plan is “sound” (paragraph 8(1) and (2) of Schedule 4B). He must prepare a report, recommending either that the draft order, with or without modifications, is submitted to a referendum or that the proposal for the order is refused (paragraph 10). He may only recommend that the order is submitted to a referendum if it complies with the “basic conditions” (paragraph 10(4)). If the local planning authority is satisfied that the neighbourhood development plan “meets the basic conditions”, is “compatible with the Convention rights”, and complies with any provision under section 61E(2), 61J and 61L of the 1990 Act, a referendum on the making of the neighbourhood development order must be held (paragraph 12(4) of Schedule 4B). If more than half of those voting have voted in favour of it, the local planning authority must “make” the neighbourhood development plan unless to do so would breach “any EU obligation or any of the Convention rights” (section 38A(4) and (6) of the 2004 Act).”
Lindblom LJ. set out the provisions of the NPPF relating to neighbourhood plans at [11]:
“11 Paragraph 183 of the NPPF says that “[neighbourhood] planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need”. It adds that “[parishes] and neighbourhood forums can use neighbourhood planning to … set planning policies through neighbourhood plans to determine decisions on planning applications …”. Paragraphs 184 and 185 state:
“184. Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community. The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood plans should reflect these policies and neighbourhoods should plan positively to support them. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies.
185. Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains takes precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. Local planning authorities should avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation.”
Paragraph 198 says that “[where] a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”. In Woodcock Holdings, Holgate J. (in paragraph 24 of his judgment) endorsed the submission of counsel for the Secretary of State that the policy in paragraph 198 does not give “enhanced status to neighbourhood plans as compared with other statutory development plans”.”
The Planning Practice Guidance (“PPG”) published by the Government was also referred to by Lindblom LJ, at [12]:
“12 The PPG, as published by the Government in March 2014 and current at the time when the NNP was made, stated in paragraph ID:41–009–20140306, under the heading “Can a Neighbourhood Plan come forward before an up-to-date Local Plan is in place?”:
“Neighbourhood plans, when brought into force, become part of the development plan for the neighbourhood area. They can be developed before or at the same time as the local planning authority is producing its Local Plan.
A draft neighbourhood plan or Order must be in general conformity with the strategic policies of the development plan in force if it is to meet the basic condition. A draft Neighbourhood Plan or Order is not tested against the policies in an emerging Local Plan although the reasoning and evidence informing the Local Plan process may be relevant to the consideration of the basic conditions against which a neighbourhood plan is tested.
Where a neighbourhood plan is brought forward before an up-to-date Local Plan is in place the qualifying body and the local planning authority should discuss and aim to agree the relationship between policies in:
• the emerging neighbourhood plan
• the emerging Local Plan
• the adopted development plan
with appropriate regard to national policy and guidance.
…
The local planning authority should work with the qualifying body to produce complementary neighbourhood and Local Plans. It is important to minimise any conflicts between policies in the neighbourhood plan and those in the emerging Local Plan. This is because section 38(5) of [the 2004 Act] requires that the conflict must be resolved by the decision maker favouring the policy which is contained in the last document to become part of the development plan.”
When that guidance was revised in February 2016 a passage was added which said that “… allocating reserve sites [in neighbourhood plans] to ensure that emerging evidence of housing need is addressed … can help minimise potential conflicts and ensure that policies in the neighbourhood plan are not overridden by a new Local Plan”.”
PPG paragraph 83, first introduced in February 2016, is also relevant in this case. It provides:
“How should planning applications be decided where there is a made neighbourhood plan but the local planning authority cannot demonstrate a 5-year supply of deliverable housing sites?
Neighbourhood plans are an important part of the plan-led system. The government’s policy intention when introducing neighbourhood planning was to provide a powerful set of tools for local people to ensure they get the right types of development for their community, while also planning positively to support strategic development needs.
Decision makers may find themselves considering applications in an area with a neighbourhood plan that has passed referendum and been “made”, and thus forms part of the development plan, but where the local planning authority cannot demonstrate a 5-year supply of deliverable housing sites.
In such instances paragraph 49 of the Framework is clear that “relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a 5-year supply of deliverable housing sites.” Paragraph 49 applies to policies in the statutory development plan documents which have been adopted or approved in relation to a local planning authority area. It also applies to policies in made neighbourhood plans.
Where the development plan is absent, silent or the relevant policies are out of date, paragraph 14 of the Framework states that the presumption in favour of sustainable development requires the granting of planning permission, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole; or specific policies in the Framework indicate development should be restricted.
In this situation, when assessing the adverse impacts of the proposal against the policies in the Framework as a whole, decision makers should include within their assessment those policies in the Framework that deal with neighbourhood planning.
This includes paragraphs 183–185 of the Framework; and paragraph 198 which states that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted.
Paragraph: 083 Reference ID: 41-083-20160211
Revision date: 11 02 2016”
(v) Determination of appeals
By section 79 TCPA 1990, Parliament has conferred responsibility for determining appeals made under section 78 TCPA 1990 on the Secretary of State.
The Secretary of State has made the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 under which the majority of section 78 appeals are determined by Inspectors, on behalf of the Secretary of State.
However, the Secretary of State has power to “recover” an appeal and determine it himself, under paragraph 3(1) of Schedule 6 to the TCPA 1990. Where he does so, he is entitled to make his own decision and not to follow the conclusions and recommendations in the Inspector’s report.
In Wind Prospect Developments Limited v Secretary of State for Communities and Local Government & Anor [2014] EWHC 4041 (Admin), I held as follows:
“23. In my judgment, in a case where the Secretary of State has decided to determine the appeal himself, it is important to bear in mind that the Secretary of State is the primary decision-maker. He is not reviewing or conducting an appeal against an Inspector’s decision.
24. The Inspector’s report is the starting-point for the Secretary of State’s deliberations. In his report, the Inspector sets out the evidence; makes findings of fact; identifies the relevant planning policies and applies them to the facts as found. In carrying out this exercise, the Inspector gives effect to the requirements of fairness by considering and recording the competing submissions of the parties. Thus, the report contains the essential information which the Secretary of State requires in order to make a decision. However, the Secretary of State will also have sight of the written evidence, pictures and plans submitted by witnesses and parties to the Inspector, on which he can form his own opinions.
25. Once the Secretary of State has considered all the relevant information, as he is bound to do, it is his statutory function to make a planning judgment, which by its very nature is both objective and subjective. Whilst he should give due consideration to the Inspector’s planning judgment, because of the Inspector’s knowledge of the particular case and his planning expertise, he is not required to follow it. Unlike a Judge hearing an application to quash a planning decision, he is entitled to substitute his planning judgment for that of the Inspector.”
Conclusions
It is convenient to consider the grounds together because of the substantial overlap between them.
Grounds 1 and 2: Misinterpretation and misapplication of the NPPF
In Grounds 1 and 2, the Claimant submitted that the Secretary of State misinterpreted and misapplied the NPPF. The specific criticisms were that the Secretary of State erred:
in DL 13, by stating that the provisions of NPPF 14 should be used as part of the assessment of whether the development was sustainable;
in DL 36, when he relied on the fact that the development conflicted with policy BB1 of the YNP to conclude that it did not comply with the “social element of sustainability”;
by misinterpreting the meaning of NPPF 198;
when undertaking the balancing exercise, because he primarily had regard to NPPF 198 and in doing so failed to have regard to the NPPF as a whole and in particular the importance of increasing the supply of housing in NPPF 49 and 47 (see St Albans City and District Council v Hunston Properties[2013] EWCA Civ 1610; Solihull MBC v Gallagher Estates Ltd[2014] EWCA Civ 1610, at [14]–[16]; and Woodcock Holdings Limited v Secretary of State for Communities and Local Government[2015] EWHC 1173 (Admin), at [92] – [95]).
Under NPPF 47, in order to boost the supply of housing, local planning authorities must identify a supply of sites for housing sufficient to provide five years supply of housing against their housing requirements, with an appropriate buffer.
NPPF 49 states:
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites.”
NPPF 14 provides (so far as is material):
“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…..
For decision-taking this means [unless material considerations indicate otherwise]:
approving development proposals that accord with the development plan without delay; and
where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
specific policies in this Framework indicate development should be restricted.” [Examples are set out in FN 9].
I accept the Secretary of State’s submissions that the Claimant’s criticisms lacked merit. In my judgment, his decision did not disclose any misinterpretation or misapplication of the NPPF.
Before the Inspector and the Secretary of State, it was not in dispute that the Council was unable to demonstrate a five year supply of housing. Therefore NPPF 49 applied, and policies for the supply of housing were deemed to be out-of-date. In consequence, the weighted balance in the second limb of NPPF 14 applied, which guided the decision-maker to grant planning permission “unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole”.
The Inspector, at IR 11.5, adopted a two stage approach saying “In the event that it is found the proposals amount to sustainable development, the tilted balance in NPPF 14 would apply ….”. At the time he wrote his Report, this approach was widely adopted, perhaps in response to the decisions of this Court at that time. Patterson J. said in Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin); [2015] 1 P & CR 2:
“54 …. When the decision letter is read as a whole it is clear that the Inspector reached an overall conclusion, having evaluated the three aspects of sustainable development, that the positive attributes of the development outweighed the negative. That is what is required to reach an eventual judgment on the sustainability of the development proposal. As was recognised in the case of William Davis (supra) at para.38 the ultimate decision on sustainability is one of planning judgment. There is nothing in NPPF, whether at para.7 or para.14 which sets out a sequential approach of the sort that Mr Whale, on behalf of the Claimant, seeks to read into the judgment of Lang J at para.37. I agree with Lang J in her conclusion that it would be contrary to the fundamental principles of the NPPF if the presumption in favour of development, in para.14, applied equally to sustainable and non-sustainable development. To do so would make a nonsense of Government policy on sustainable development.”
A two stage approach was criticised by Jay J in Cheshire East BC v Secretary of State for Communities and Local Government[2016] EWHC 571 (Admin); [2016] PTSR 1052, at [25]:
“Nor do I believe that it is necessarily helpful to say that paragraph 14 does not apply to development which is not sustainable. If, having applied the paragraph 14 algorithm, that is the conclusion which is reached, I have no difficult with this formulation. However, a decision maker will only know if a proposal is sustainable or not by obeying the processes mandated by the paragraph. An integral part of the process is a positive weighting in favour of sustainable development in the sense that the proposal will be assessed as such unless the planning harm clearly and significantly outweighs the planning gain.”
Jay J’s approach was followed in East Staffordshire Borough Council v Secretary of State for Communities and Local Government[2016] EWHC 2973 (Admin) and Barker Mill Estates Trustees v Test Valley BC[2016] EWHC 3028 (Admin).
At DL 13, the Secretary of State said:
“He notes the Inspector’s conclusions at IR11.5 but does not agree with his interpretation. In considering the provisions of paragraph 14 of the Framework he concluded that the paragraph should be used as part of the assessment of whether the development is sustainable.”
I agree with Mr Whale’s submission that DL 13 reflected the current prevailing interpretation of NPPF 14, and that the Secretary of State’s disagreement with the Inspector’s interpretation was supported by recent authorities.
I also agree with Mr Whale’s submission that when the Secretary of State was applying the weighted presumption in the second limb of NPPF 14, he was entitled, and indeed required, to take into account relevant policies in other parts of the NPPF because NPPF 14 expressly requires the decision-maker to assess whether the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits “when assessed against the policies in the Framework taken as a whole” (emphasis added). Relevant policies in this case included policies on sustainable development (see NPPF 6 – 10 under the heading “Achieving sustainable development” and NPPF 18 to 219 on delivering sustainable development) and policies on neighbourhood plans (see NPPF 183 – 185 and 198), as well as policies to boost the supply of housing (see NPPF 47 and 49).
Mr Whale’s submission was in accordance with the judgment of Lindblom J. (as he then was) in Crane v Secretary of State for Communities and Local Government[2015] EWHC 425 (Admin) where he said:
“73 The reference in paragraph 14 of the NPPF to its policies being “taken as a whole” is important. It indicates that the decision-maker is required, when applying the presumption in favour of “sustainable development”, to consider every relevant policy in the NPPF. As paragraph 6 of the NPPF says, the policies in paragraphs 18 to 219, “taken as a whole”, constitute the Government’s view of what “sustainable development” means in practice for the planning system. Those 202 paragraphs include the policy on neighbourhood plans in paragraphs 183 to 185, and the policy on determining applications where there is conflict with an extant neighbourhood plan, in paragraph 198. There is no justification for excluding those four paragraphs from the ambit of potentially relevant policy on “sustainable development” in the NPPF. In this case they clearly were relevant.
74 I do not accept the proposition that, in a case where relevant policies for the supply of housing are out of date, the weighing of “any adverse impacts” against “the benefits” under paragraph 14 should proceed – as Mr Hill put it in paragraph 71 of his skeleton argument – “on the basis that the development plan components have been assessed, put to one side, and the balancing act takes place purely within the text of [the NPPF] as a whole”. Paragraph 14 of the NPPF does not say that where “relevant policies” in the development plan are out of date, the plan must therefore be ignored. It does not prevent a decision-maker from giving as much weight as he judges to be right to a proposal's conflict with the strategy in the plan, or, in the case of a neighbourhood plan, the “vision” (as it is described in paragraph 183). It does not remove the general presumption in paragraph 198 against planning permission being granted for development which is in conflict with a neighbourhood plan that has come into effect. These are all matters for the decision-maker's judgment, within Wednesburybounds.
75 In this case the Secretary of State did what paragraph 14 of the NPPF required him to do. In paragraphs 18 and 19 of his decision letter, and then in paragraphs 23 to 26, he balanced the competing considerations. He weighed the “adverse effects” of the proposal against its “benefits”, in the light of the policies in the NPPF “taken as a whole” – including both its policy on housing supply and its policies on neighbourhood planning (paragraph 18). On the “benefits” side of the balance he gave “substantial weight” to the ability of the proposed development to “assist in addressing the housing land supply shortfall” (paragraphs 19 and 23). There is no complaint about that conclusion. On the “any adverse impacts” side of the balance he gave “very substantial negative weight” to the conflict between the appeal proposal and the neighbourhood plan (paragraph 19), even though this plan was “currently out of date in terms of housing land supply ahead of its review in 2018” (paragraph 25). He acknowledged what the inspector had said in paragraphs 43 to 49 of his report, including the inspector's conclusion that the “housing land supply elements” of the then emerging neighbourhood plan attracted only “moderate weight” (paragraph 19). However, given that the neighbourhood plan had now been brought into force, he considered the proposal's conflict with that plan under the policy in paragraphs 183 to 185 and 198 of the NPPF (paragraph 19). He was entitled – indeed, required – to do that. The presumption in paragraph 198 was a consideration to which he was entitled to give significant weight. And he clearly did. He attached great importance to the concept, in paragraph 185 of the NPPF, that “neighbourhood plans will be able to shape and direct sustainable development in their area”. In his view, as he said, this was “more than a statement of aspiration” (paragraph 19). He explained what he meant by this in the penultimate sentence of paragraph 19: that once a neighbourhood plan has become part of a development plan it “should be upheld as an effective means to shape and direct development in the neighbourhood planning area in question, for example to ensure that the best located sites are developed”. This reasoning led to the conclusion that the proposal's conflict with the neighbourhood plan had to be given “very substantial negative weight” – which was enough weight “significantly and demonstrably” to outbalance the benefit of the additional housing proposed (paragraph 26).”
PPG paragraph 83 also advises that, in applying the second limb of NPPF 14, when assessing the adverse impacts of the proposal against the policies in the Framework as a whole, under the second limb of NPPF 14, “decision makers should include within their assessment those policies in the Framework that deal with neighbourhood planning. This includes paragraphs 183–185 of the Framework; and paragraph 198 which states that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”. The Secretary of State’s approach conformed with this guidance.
The Claimant submitted that the Secretary of State misunderstood and misapplied the NPPF when he concluded in DL 36 that the development proposal did not comply with “the social element of sustainability” because of its conflict with the YNP and neighbourhood plan policies in the NPPF. The Claimant submitted that NPPF 7 (second bullet point) comprehensively explained the nature of the social element of sustainability and it did not include neighbourhood plans.
NPPF 7 provides (so far as is material):
“There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
…..
a social role - supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of the present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being;
…..”
In my judgment, the Claimant’s interpretation of the social element of sustainable development was too narrow. NPPF 7 bullet point 2 describes aspects of the social element of sustainable development; it does not exhaustively describe or define it.
The established definition of sustainable development, set out in the NPPF under the heading “Achieving sustainable development” is broad in scope:
“International and national bodies have set out broad principles of sustainable development. Resolution 42/187 of the United Nations General Assembly defined sustainable development as meeting the needs of the present without compromising the ability of future generations to meet their own needs. The UK Sustainable Development Strategy Securing the Future set out five ‘guiding principles’ of sustainable development: living within the planet’s environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly,”
The principles of “a strong, healthy and just society” and “promoting good governance” are part of the social element of sustainable development, as commonly understood i.e. the ability of a society to function effectively. These principles are sufficiently broad to encompass the NPPF policies for a system of planning within which “local people and their accountable councils can produce their own distinctive local and neighbourhood plans, which reflect the needs and priorities of their communities” (NPPF 1) and the notion of “empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area” (NPPF 17).
NPPF 6 explains that the policies in paragraphs 18 to 219, taken as a whole, constitute the Government’s view of what sustainable development means in practice for the planning system. This clearly includes NPPF 183 – 185 and 198.
I agree with paragraph 73 of Lindblom J.’s judgment in Crane, where he said that there was no justification for excluding NPPF policies on neighbourhood plans “from the ambit of potentially relevant policy on “sustainable development” in the NPPF”.
The Claimant also added a submission which was not pleaded in its grounds, namely, that the Secretary of State misapplied NPPF 198 (which provides that planning permission should not normally be granted if it conflicts with a neighbourhood plan), by not appreciating that the general rule was qualified. I cannot accept this submission. No part of the DL suggests that the Secretary of State made such a careless error in his reading of the paragraph. The Secretary of State weighed the neighbourhood plan in the balancing exercise required under the second limb of NPPF 14; he did not simply refuse planning permission on the basis that the development conflicted with the neighbourhood plan without applying the appropriate test and without proper consideration of the factors in favour of the grant of permission.
There was some debate before me as to the interplay between NPPF 196 and 198. In my judgment, the general statement of law in NPPF 196 applies equally to all parts of the development plan, including neighbourhood plans. NPPF 198 does not give “enhanced status to neighbourhood plans as compared with other statutory development plans” (per Holgate J., in Woodcock Holdings, at [24], approved by Lindblom LJ in DLA Delivery Ltd at [11]). Nor does NPPF 198 merely re-state NPPF 196 insofar as it relates to neighbourhood plans - that would be pointless repetition. Under the heading “Determining applications”, the NPPF reiterates to the decision-maker some of the key principles and policies set out earlier in the NPPF which should be applied when determining an application. NPPF 196 re-states the statutory framework within which decisions must be taken. NPPF 197 reminds the decision-maker to apply the presumption in favour of sustainable development. NPPF 198 reiterates to the decision-maker the importance of the role accorded to neighbourhood plans in the policies of the NPPF, in particular at NPPF 17 and at 183 to 185.
I do not accept the Claimant’s submission that the Secretary of State failed to have regard to and apply relevant provisions in the NPPF other than those relating to neighbourhood plans. On a fair reading of the DL, the Secretary of State had regard to, and applied, the provisions in NPPF 7, 9, 14 and 49 in relation to sustainable development. The Secretary of State agreed with the Inspector that one of the main issues in the appeal was “whether the proposals would amount to sustainable development as set out in the …. NPPF” (DL 11 and IR 11.1). He expressly referred to sustainable development at DL 13, 18, 36 and 37. The Secretary of State also cross-referred to the passages in the Inspector’s Report on sustainability and NPPF 7, 14, 47 and 49 (at IR 11.3 to 11.5, 11.10 to 11.12, 11.16, 11.25, 11.36, 11.43 to 11.44, 11.48 and 11.55). The Secretary of State plainly had regard to NPPF policies to boost the supply of housing, as evidenced in DL 13, 16, 18, 19, 20, 29, 33 and 37. He also cross-referred to the Inspector’s Report on NPPF 47 (at IR 11.16 and 11.43). The Secretary of State sought additional representations from the parties on the Court of Appeal decision in Suffolk Coastal because of its analysis on the application of NPPF 14 and 49 where there was a shortfall in the five year supply of housing, thus demonstrating his appreciation of the central importance of this issue to this appeal.
Ground 3: failure to take account of material change in circumstances or investigate it
In Ground 3, the Claimant went on to submit that the Secretary of State failed to take account of the further material submitted to him by the Claimant after the date of the Inspector’s Report, in February, May and June 2016, which provided updating information. The Inspector identified that there was considerable uncertainty as to the eLP, the objectively assessed need and the 5 year housing land supply position and concluded on the evidence then before him that (1) the future objectively assessed need was likely to be 758 dpa (compared with 580 dpa); and (2) the Council at that time could barely demonstrate a 3 year supply. As at May 2016, the supply of housing land was no more than 2.84 years. Moreover, in another application, the Council had taken a different position, and was willing to grant planning permission for housing in Yapton on a site not allocated by the YNP.
On fair reading of the Secretary of State’s decision, I am not persuaded that he failed to take account of the Claimant’s further representations sent on 3 February, 25 May and 24 June 2016. It is not possible to infer that he overlooked them, merely because they were not expressly referred to. The Secretary of State was entitled to form the view that it was not necessary to refer to them specifically as they formed part of a wider body of evidence concerning housing need and supply, and the YNP. They were relevant, but not so significant to merit being singled out for separate consideration. He addressed those issues adequately in his DL.
I agree with Mr Whale that the Secretary of State was addressing issues of procedural fairness at DL 5 to 7, which have not been raised as a ground here. Although these paragraphs, and the Annex, do not expressly refer to all the Claimant’s further representations, I consider that, on the balance of probabilities, this was probably an administrative or drafting error.
The Claimant also submitted that if the Secretary of State had carried out further investigations, after the Claimant’s last set of representations in June 2016, he would have discovered evidence of a worsening in the housing shortfall by the time he issued his decision on 13 September 2016, which he ought to have taken into account. According to the Claimant, on 19 October 2016, the Council’s Local Plan Sub-Committee considered a report which identified that the objective assessed need figure should be increased from 845dpa to 919dpa, on the basis of an assessment published by G.L. Hearn in September 2016.
In my judgment, despite his delay, the Secretary of State was not required to carry out further investigations or seek updating submissions unless he became aware of a need to do so (as he did with the Court of Appeal’s Suffolk Coastal judgment). It was the responsibility of the parties to notify him of any new material which they considered he ought to take into account. As the Sub-Committee’s report considering the Hearn assessment post-dated the Secretary of State’s decision, it was most unlikely that this material could have reached him before he made his decision.
Ground 4: failing to take into account other material considerations, namely, the Independent Examiner’s reservations about the YNP
In Ground 4, the Claimant submitted that the Secretary of State failed to have regard to the Independent Examiner’s (“IE”) reservations about the YNP. However, in DL 15, the Secretary of State expressly stated that he had “carefully noted the Inspector’s analysis at IR 11.7-16”.These paragraphs of the Inspector’s Report included the following matters:
The IE’s reservations (recorded at IR11.7) about the relationship between the YNP and the eLP;
The IE’s comment (recorded at IR11.7) that producing the YNP was “challenging”;
The Inspector’s view (recorded at IR11.9) that the IE’s comment should be given new force; and
The Inspector’s view (recorded at IR11.9) that a YNP review could not now meaningfully take place for another 12-18 months.
In my view, on a fair reading of his decision, the Secretary of State was incorporating these points by reference to the Inspector’s Report, rather than setting them out again verbatim. Therefore I cannot accept the submission that he failed to take them into account. The Secretary of State disagreed with the Inspector’s conclusions, as he was entitled to do.
Ground 5: internal inconsistency in the weight given to development plan policies
The basis of Ground 5 was that there was an internal inconsistency in the DL, between DL 13, where the Secretary of State accorded ADLP policies GEN2 and GEN3 “limited weight” because they were out of date, and DL 38 where the Secretary of State gave them “moderate weight”.
In my judgment, Mr Whale’s reading of the DL was correct. At DL 13, the Secretary of State was indicating that less than full weight was to be attributed to the ADLP policies because they were out of date. DL 38 was the Secretary of State’s actual attribution of weight, which was “moderate”. I accept that these passages were not well-drafted because the term “limited” was also used to attribute weight specifically in DL 38. However, I am satisfied as to the meaning, and I bear in mind that decision letters must be read without excessive legalism or criticism.
The Claimant also alleged that the Secretary of State was inconsistent in giving the conflict with ADLP policies GEN2 and GEN3 less weight than the conflict with Policy BB1 of the YNP. However, the difference in approach was explained and justified by the policies in relation to neighbourhood plans, which I consider below.
Ground 6: Irrationality
In considering the Claimant’s grounds 1 to 5 as a whole, I reached the conclusion that the Claimant’s true complaint was not that the Secretary of State had disregarded the need for housing but rather that he gave excessive weight to the importance of the neighbourhood plan, at the expense of the need for housing. The assessment of weight is an exercise of planning judgment which cannot be challenged in an application for statutory review, subject to Wednesbury irrationality: see Edinburgh City Council v Secretary of State for Scotland[1997] 1 W.L.R. 1447, at 1459 (paragraph 10 above); Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983 (paragraphs 11-12 above). As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions[2001] EWHC Admin 74, at [6], this Court “must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits”.
In my judgment, the Claimant’s submission, in Ground 6, that it was irrational for the Secretary of State to give the conflict with Policy BB1 of the YNP substantial negative weight, was, in truth, a challenge to the merits of the Secretary of State’s planning judgment. The Claimant’s attack on the Secretary of State’s decision took the form of re-stating again and again the contrary submissions which it had made in the appeal, without any appreciation of the Secretary of State’s judgment, and the importance of the countervailing considerations.
The Secretary of State found as follows:
“15. The Secretary of State has carefully noted the Inspector’s analysis at IR11.7-16 but he does not agree with his conclusions. He agrees with the Inspector (IR11.8) that the housing policies in the eLP are at an early stage. He notes that the Independent examiner found the Yapton Neighbourhood Plan sound (IR11.9), and he thus finds it complies with the Framework. He notes that Policy H1 states that “additional allocations will be made if the emerging Arun Local Plan requires such action or if the identified housing sites do not proceed.” As such he concludes that while the YNP is currently underpinned by an outdated OAN (IR 11.9), Policy H1 has flexibility to allow any shortfall in housing supply to be met. As such he gives significant weight to the housing policies of the YNP.
16. The Secretary of State finds that the proposal is in conflict with Policy BB1, as it is not in the built up area boundary and does not fall within any of the exemptions listed in the policy. He agrees that policy BB1 is out of date (IR11.10) in the absence of a 5 year HLS. However, given his conclusions on Policy H1 at paragraph 15 above he gives it significant weight. The Secretary of State considers that neighbourhood plans, once made part of the development plan, should be upheld as an effective means to shape and direct development in the neighbourhood planning area in question. Consequently, in view of Framework paragraphs 198 and 185, and his guidance on neighbourhood planning that this is the case even in the absence of a 5 year housing land supply, the Secretary of State places very substantial negative weight on the conflict between the proposal and policy BB1.”
In my judgment, it was well within the bounds of rationality for the Secretary of State to conclude that the flexibility to meet the housing shortfall which was contained within Policy H1 of the YNP meant that significant weight could be given to the YNP housing policies. Policy H1 could be adapted to meet housing supply needs because it provided for a minimum housing requirement in accordance with the emerging ADLP, plus an additional buffer of 20%. It was not necessary for the Secretary of State to see evidence of further allocations pursuant to the policy at this early stage. Even where a policy for the supply of housing is deemed to be out of date, the weight to be accorded to it is a matter for the decision-maker: see Suffolk Coastal at [46] - [47]. Where a neighbourhood plan policy is in play, the decision-maker must have regard to NPPF policies on neighbourhood plans: see Crane at [73] – [75].
In assessing weight, the Secretary of State was entitled, and indeed required, to take into account his policy on neighbourhood plans. As Lindblom LJ said in DLA Delivery Ltd, “neighbourhood planning was an important part of the coalition Government’s “localism” agenda”: see the Ministerial Foreword to the NPPF explaining the intention to dismantle the “unaccountable regional apparatus” and introduce “neighbourhood planning” to allow “people and communities back into planning”. NPPF 17 sets out “core” principles, the first of which is that planning should be “genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area”. NPPF 183 to 185 set out the scope of neighbourhood plans; their relationship with the strategic policies in the Local Plan; and their contribution to shaping development in their areas. Because of these policies, NPPF 198 provides that planning permission should not normally be granted for a proposal which conflicts with a neighbourhood plan.
In the light of these policies, I consider that the Secretary of State was entitled to conclude, in the exercise of his planning judgment, that the neighbourhood plan should be upheld as an effective means to shape and direct development in its area, and to place very substantial negative weight on the conflict between the proposal and Policy BB1 (DL 16).
The Claimant obtained by way of disclosure a copy of the internal Planning Casework Division (“PCD”) submission to the Secretary of State dated 9 December 2016. It recommended that the Secretary of State should allow the appeal. The Claimant submitted, in support of Grounds 4, 5 and 6, that the Secretary of State had failed to have regard to this advice, and that the DL was inconsistent with the advice given, thus confirming that the decision was irrational. I have taken the PCD submission into account when considering those grounds.
In my judgment, it would not have been appropriate for the Secretary of State to refer to the PCD submission in the DL. PCD submissions are internal advice to the Minister and are not disclosed unless they are relevant to subsequent litigation. It seems very unlikely that the Secretary of State failed to consider it, since an internal submission of this kind would usually be a helpful starting point for the Minister. The PCD essentially adopted the same approach as the Inspector, and the Secretary of State’s DL adequately explained why he took a different view (see also under Ground 7 below).
The Secretary of State was entitled to make up his own mind, and reach a different conclusion to that of the PCD and the Inspector. As I said in Wind Prospect, in a recovered appeal, the Secretary of State is the decision-maker, not the Inspector. Although he should give due consideration to the Inspector’s Report, he is not required to follow it, and in particular, he is entitled to substitute his planning judgment for that of the Inspector.
Ground 7: Reasons
The Secretary of State was under a statutory duty to give reasons for his decision, pursuant to Rule 18(1) of the Town and Country Planning (Inquiries Procedure)(England) Rules 2000.
In Save Britain’s Heritage v No. 1 Poultry Ltd [1991] 1 WLR 153, Lord Bridge considered the nature of the statutory duty on the Secretary of State to give reasons under what was then Rule 17(1) of the 1988 Rules. He said, at 166H:
“The three criteria suggested in the dictum of Megaw J. in In re Poyser & Mills Arbitration[1964] 2 QB 467, 478 are that reasons should be proper, intelligible and adequate. The application of the first of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons are unintelligible, this will be equivalent to giving no reasons. The difficulty arises in determining whether the reasons given are adequate, whether in the words of Megaw J., they deal with the substantial points that have been raised or in the words of Philips J. in Hope v Secretary of State for the Environment 31 P. & C.R. 120, 123 enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships’ House would be giving helpful guidance by offering a general answer to this question and thereby “setting the standard” but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision.”
In South Bucks District Council and another v Porter (No 2) [2004] 1 W.L.R. 1953, Lord Brown summarised the content of the duty on inspectors at [36]:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
In Wind Prospect (supra) the claimant submitted that, where the Secretary of State disagreed with a detailed report by an Inspector who has planning expertise, he was required to provide a detailed reasoned rebuttal, comparable to the standard of reasons expected of a professional judge when rejecting expert evidence in the course of civil litigation. I rejected that submission, holding that where the Secretary of State disagreed with an Inspector, the standard of reasons required was as set out in the speeches of Lord Bridge in Save Britain’s Heritage and Lord Brown in South Bucks, applied as appropriate to the particular case.
In this case the Claimant did not disagree with my conclusion in Wind Prospect, but nonetheless in the course of his submissions he repeatedly criticised the Secretary of State for not making a detailed reasoned rebuttal of the Inspector’s Report, especially IR 11.7 - 11.16 where he considered the YNP. The Inspector produced a very detailed and lengthy Report. The Secretary of State was not required to make a detailed response to each step of the Inspector’s reasoning, analysed paragraph by paragraph. Nor was the Secretary of State required to address each and every point raised by the Claimant in its representations. This would go considerably beyond the “conclusions” on the “principal important controversial issues”. As Lord Brown also said in South Bucks, “reasons can be briefly stated”.
Although this appeal was controversial, it was not especially complex, in fact or law. The reasons in the Secretary of State’s DL were adequate and intelligible. In my view, the Claimant knew full well the Secretary of State’s conclusions on the principal important controversial issues. Its real complaint was that the conclusions reached were unreasonable and misguided.
Finally, there was no obligation on the Secretary of State to refer to the PCD submission in the DL or give reasons for disagreeing with it, as PCD submissions are internal advice to the Minister and are not routinely disclosed.
Conclusion
For the reasons set out above, the application under section 288 TCPA 1990 is dismissed.