Chichester District Council v Secretary of State for Housing, Communities and Local Government & Anor

The Claimant, Chichester District Council (“the Council”) challenges by statutory review under s.288 of the Town and Country Planning Act 1990 (“the TCPA 1990”) the decision of the First Defendant’s inspector, set out in his Decision Letter of 2 November 2017 (“the DL”), to allow an appeal by the Second Defendant, Beechcroft Ltd against the Council’s decision dated 8 February 2017 to refuse its application for planning permission for up to 34 dwellings and related development of land at Breach Avenue, Southbourne, West Sussex (“the proposed development”).

The claim was lodged on 12 December 2017. The papers were initially considered by Lang J on 18 January 2018 who ordered the Claimant to file Supplementary Statement of Grounds which were duly filed on 8 February 2018, together with Supplementary Grounds of Resistance by the Defendants on 21 February 2018. Permission to proceed with the statutory review was granted by Lang J on the papers in an order dated 26 March 2018.

The Claimant challenges the inspector’s DL on two grounds which are related. First, in ground 1(a), it is contended that the inspector failed to decide whether the proposed development “conflicts with a neighbourhood plan”, namely the Southbourne Parish Neighbourhood Plan 2014-2019 (“the NP”) as required by para 198 of the National Planning and Policy Framework (“the NPPF”). Secondly, in ground 1(b), it is contended that the inspector irrationally relied upon a distinction between the “policies” of the NP and its “aims” when assessing whether the proposed development conflicted with the NP.

Although Lang J granted permission on both grounds, in her order it appears she considered that ground 1(b) was the more meritorious.

The claim relates to a proposed residential development on land in the Southbourne area. There is in effect a ‘neighbourhood plan’, (the NP), for the Southbourne area dealing with such development which dates from September 2015. There is also a Local Plan of the Council’s for 2014-2029 (“the LP”). The NP identifies new sites for housing in the Southbourne area based upon the indicative number of houses allocated to Southbourne in the LP.

A “neighbourhood development plan” is defined in s.38A(2) of the Planning and Compulsory Purchase Act 2004 (“the PCPA 2004”) 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.”

Together the LP and NP comprise, so far as relevant for this case, the “development plan” as defined in s.38(3) of the PCPA 2004.

It is common ground between the parties that the relevance of this, in this case, lies in s.38(6) of the PCPA 2004 and para 198 of the NPPF. Section 38(6) provides that:

“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.”

By virtue of s.70(2) of the TCPA 1990, the “development plan” was material to a determination of the planning application in this case.

Further, specifically in relation to a ‘neighbourhood plan’ para 198 of the NPPF provides:

“Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should normally not be granted”

It is common ground between the parties that para 198 of the NPPF is consistent with s.38(6) of the PCPA 2004 and does not give an enhanced status to a ‘neighbourhood plan’ (see Woodcock Holdings Ltd v SSCLG [2015] JPL 1151 at [24] and SSCLG v BDW Trading Ltd [2016] EWCA Civ 493 at [21]).

It is, therefore, a central part of the decision-making process in respect of a planning application to determine whether the proposal “conflicts” with the development plan, i.e. in this case the LP and/or the NP.

It is also common ground between the parties, as the inspector concluded at para [18] of his DL, that the proposed development was in conflict with the policies of the LP, in particular Policies 2 and 45, as it fell outside the settlement boundaries of the NP and did not meet “an essential, small scale and local need” (see para [9], DL). I need say no more about the LP as the focus of the argument, and dispute between the parties, is upon the NP and whether the proposal “conflicts” with it.

The relevant policies in the NP are Policy 1 and Policy 2.

Policy 1 sets out the “settlement boundaries” for development in the area and provides as follows:

“The Neighbourhood Plan will support development proposals located inside the Settlement Boundaries of Southbourne/Prinsted, Nutbourne West and Hermitage/Lumley/Thornham, as shown on the Policies Map, provided they accord with other provisions of the Neighbourhood Plan and development plan.”

Policy 2 provides a detailed allocation of 4 sites:

“The Neighbourhood Plan allocates the following sites for housing development of a mix of mainly 1, 2, 3, and 4 bedroom homes, as shown on the Policies Map, subject to the development principles outlined:

i.

150 dwellings on land at Loveders Mobile Home Park, Main Road, provided the scheme:

a.

is accessed from the A259 Main Road only;

b.

meets its public open space requirements by providing land to form part of the Green Ring proposed in Policy 3, comprising a playing field, an equipped children’s play space and informal open space;

c.

safeguards land within the site for the future erection of a pedestrian footbridge over the railway east of Southbourne station and connected this to the footpath network of the Green ring; and

d.

enables the provision of a new footpath to Southbourne railway station, to the satisfaction of Network Rail, and makes a reasonable financial contribution to the cost of implementing this footpath.

e.

demonstrates by way of a site specific flood risk assessment that the proposed development would be acceptable incorporating Sustainable Drainage Systems (SuDS) to prevent increases in surface water flood risk; and

f.

includes a Solent-wide strategic mitigation package proportionate to the scale of the recreational disturbance to the Chichester Harbour SPA.

ii.

125 dwellings on Land North of Alfrey Close, provided the scheme:

a.

is accessed from the A259 Main Road;

b.

meets its public open space requirements by providing land to form part of the Green Ring proposed in Policy 3, comprising informal open space and an equipped children’s play space;

c.

demonstrates by way of a site specific flood risk assessment that the proposed development would be acceptable incorporating Sustainable Drainage Systems (SuDS) to prevent increases in surface water flood risk; and

d.

includes a Solent-wide strategic mitigation package proportionate to the scale of the recreational disturbance to the Chichester Harbour SPA.

iii.

25 dwellings on Land at Gosden Green, provided the scheme;

a.

is accessed from the A259 Main Road by way of a new road along the eastern boundary of the site;

b.

meets its public open space requirements by providing land to form part of the Green Ring proposed in Policy 3, comprising informal open space;

c.

includes a Heritage Statement identifying mitigation proposals where evidence indicates potential presence of remains; demonstrates by way of a site specific flood risk assessment that the proposed development would be acceptable incorporating Sustainable Drainage Systems (SuDS) to prevent increases in surface water flood risk; and

d.

includes a Solent-wide strategic mitigation package proportionate to the scale of the recreational disturbance to the Chichester Harbour SPA.

iv.

50 dwellings on Land at Nutbourne West, provided the scheme:

a.

is accessed from the A259 Main Road;

b.

provides a significant landscape buffer along all its boundaries, comprising structural landscaping, public allotments, informal open space and a children’s play area;

c.

makes reasonable financial contribution towards a package of drainage works to mitigate the impacts of the development and to ensure that existing flooding problems in the vicinity of the site and downstream are not exacerbated; and

d.

makes provision for car parking spaces to benefit dwellings adjoining the site;

e.

includes a Heritage Statement identifying mitigation proposals where evidence indicates potential presence of remains;

f.

demonstrates by way of a site specific flood risk assessment that the proposed development would be acceptable incorporating Sustainable Drainage Systems (SuDS) to prevent increases in surface water flood risk; and

g.

includes a Solent-wide strategic mitigation package proportionate to the scale of the recreational disturbance to the Chichester Harbour SPA.

All the proposed allocations will be expected to deliver affordable housing in accordance with the policies of the development plan and to provide financial contributions to meeting their infrastructure requirements and other provisions of the Neighbourhood Plan, as indicated in Proposal 2.”

The reasoned justification for Policy 2 is given at paras 4.6-4.8 of the NP:

“4.6

The prior alignment of the Settlement Boundaries was established in the 1999 Local Plan Policy BE1. However, as there are no sites of sufficient size to accommodate new development within these boundaries, their alignment requires amendments in order to make provision for the site allocations in Policy 2.

4.7

A review of these boundaries has been undertaken using the SPNP evidence base to derive the following criteria to justify amendments:

a)

Proximity to the Chichester & Langstone Harbours Special Protection Area – land is not in an area within the designated 400m buffer zone (in accordance with saved Policy RE7 of the 1999 Local Plan and NPPF para 118)

b)

Relative landscape sensitivity to development – not land within the Chichester Harbour AONB (in accordance with saved Policy RE4 of the 1999 Local Plan and NPPF para 115)

c)

Minimisation of local traffic congestion – only land south of the Stein Road railway level crossing (in accordance with saved Policy TR6 of the 1999 Local Plan and NPPF para 30)

d)

Flood risk – land in Flood Zone 1 only (in accordance with NPPF para 100)

e)

Proximity to local services – land in close proximity to either Southbourne, Nutbourne or Hermitage local services and/or public transport service routes (in accordance with NPPF para 70).

4.8

Only where all five of the above criteria can be met is there a justification for a re-alignment of the boundary. In this way, the policy accords with national planning policy aimed at promoting development in rural areas but minimising its impact on areas of international nature conversation significance, the countryside and the local highway network. It also accords with the principles for reviewing the settlement boundary as proposed in Policy 2 of the CLPKP of:

•

Respecting the setting, form and character of the settlement – see (b) above

•

Avoiding actual or perceived coalescence of settlements – see (b) above

•

Ensuring good accessibility to local services and facilities – see (c) and (e) above.” (my emphasis)

I have highlighted para 4.7(c) as it features prominently in the case. The justification recognises that the settlement boundary and chosen sites were selected only on land “south of the Stein Road railway level crossing” in order to minimise local traffic congestion. The issue of congestion was raised during the public consultation (see para 2.33 of the NP). The NP also refers to it as one of the “Objectives & Measures” listed in para 3.2 in order to achieve the key objectives of the NP:

“9.

To avoid increasing traffic congestion at the Stein Road railway crossing in the plan period and to identify long term solutions.”

The proposed development, for which planning permission was given, was on land north of the Stein Road railway level crossing.

One final matter in relation to the NP which I should set out here concerns the report of the Examining Inspector in respect of the (then) draft NP in May 2015. He recommended changes to Policy 1 of the draft NP which were subsequently made to the final NP: Policy 1 in its draft form was as follows with the suggested amendments struck through:

“Policy 1: Development within the Settlement Boundaries Spatial Strategy

The Neighbourhood Plan will support development proposals located inside the Settlement Boundaries of Southbourne/Prinsted, Nutbourne West and Hermitage/Lumley/Thornham, as shown on the Polices Map, provided they accord with other provisions of the Neighbourhood Plan and development plan. Development proposals outside the Settlement Boundary will be required to conform to development plan policy in respect of the control of development in the countryside.”

The Examining Inspector’s justification for recommending the change was that it was not appropriate for the NP to deal with development in the countryside (i.e. outside the settlement boundary) and that that should be left to the development plan policies of Chichester DC, in effect through its LP:

“5.9

To the extent that over the life of the Plan proposals might come forward for development outside the settlement boundaries, it would not be appropriate for the Plan to require such proposals to conform to development plan policy in the countryside. That responsibility should be for Chichester District Council to determine through its development plan policies. For this reason I have indicated that if this policy is to be retained, the final sentence of the draft policy should be removed, as indicated below. In the explanatory text, the policy should therefore encourage, rather than direct development, within the established settlements within the parish. The recommended revision to the policy is shown in Appendix 1.”

With that background in mind, I turn to consider the inspector’s DL.

The DL at paras [6]-[11] dealt with the LP and NP and the Claimant’s contention that the proposal was in conflict with both of them:

“Development Plan Strategy

6.

The development plan comprises the adopted Chichester Local Plan Key Policies 2015 (LP) and the made Southbourne Parish Neighbourhood Plan 2015 (NP). Policy 1 of the LP reflects the presumption in favour of sustainable development set out in paragraph 14 of the National Planning Policy Framework (the Framework). Policy 2 sets out the settlement hierarchy for the District, with Chichester city at the top and Southbourne and three other locations as second tier Settlement Hubs. Below the Settlement Hubs are Service Villages and the Rest of Plan Area, which comprises smaller settlements and the countryside. Strategic development in the form of medium-scale extensions is identified at Settlement Hub locations including Southbourne. The policy includes a presumption in favour of sustainable development within settlement boundaries. These boundaries are to be reviewed through Development Plan Documents and Neighbourhood Plans. Development in the Rest of the Plan Area is restricted to that which requires a countryside location or meets an essential local need.

7.

Policy 5 of the LP makes provision for small scale housing to meet local community needs on sites to be identified in neighbourhood plans. In Southbourne, excluding Southbourne Village and strategic allocations, an indicative number of 50 units is proposed. Policy 20 makes provision for strategic development in Southbourne. Such development is to be allocated in the NP and will include 300 homes. Policy 45 states that development outside of settlement boundaries will be granted where it requires a countryside location and meets essential, small scale and local needs. The Council’s planning proof also refers to LP Policy 33 which deals with the design of residential development. However, no conflict with this policy is alleged.

8.

Policy 1 of the NP supports development proposals located within the settlement boundaries identified on the Policies Map. Those boundaries have been amended to allow for the allocation of four housing sites for a total of 350 units under Policy 2. Development has been completed, commenced, or planning permission granted for a total of 357 units in accordance with these NP allocations. Policy 3 proposes the establishment of a Green Ring around the village of Southbourne.

9.

The appeal site comprises essentially undeveloped land which was formerly used as an orchard. It abuts the eastern edge of established residential development at Breach Avenue as well as Fraser Gardens and East Field Close. However, the site falls outside of the settlement boundary as defined in the NP and is not allocated for any form of development. Nor is it claimed that the appeal proposal would meet an essential, small scale and local need. It is common ground, therefore, that the proposal would be contrary to LP Policies 2 and 45.

10.

The Council considers that the proposal is also in conflict with LP Policy 45 and NP Policies 1 and 2 on the basis that the unplanned provision of 34 dwellings would be at variance with the development strategy for Southbourne which was properly considered through the LP and NP preparation processes.

11.

The appellant contends that these policies are silent on the question of housing development outside of settlement boundaries and are, therefore, not relevant to the appeal proposal. The appellant points to the NP Examiner’s Report³ which recommended the omission of wording from Policy 1 which would have required development outside of settlement boundaries to conform to development plan policy for the control of development in the countryside. Moreover, it is argued that the scale of development proposed would not be inconsistent with the overall size of Southbourne or the level of development anticipated there in the development plan strategy. The appellant draws support for its approach from an appeal decision at Newick⁴.”

At paras [12]-[18] the inspector set out his conclusions on the parties’ arguments before him as follows:

“12.

I agree with the appellant that the policies in question do not directly presume against development outside of settlement boundaries. Furthermore, it was accepted by the Council that LP Policy 5 does not set a cap on the amount of housing which may be provided. That much is plain from the policy’s use of the phrase ‘indicative housing numbers.’

13.

Nevertheless, nor is there anything in the NP policies which supports the proposal. Indeed, it is clear that the way in which the settlement boundary was amended under NP Policy 1, and the housing allocations located under Policy 2, was the result of an intention to avoid further development north of the railway line in order to minimise congestion at the Stein Road level crossing⁵. I also heard from interested parties at the Inquiry, as well as others in written submissions, how important this consideration was to local people in the preparation of the NP. The appeal site is located to the north of the railway line. For this reason it was considered and rejected as a housing location during the NP preparation process. I consider below the effect of the proposal on congestion at the crossing. However, at this stage, it is pertinent to recognise that the proposal is at odds with the aims of the NP with regard to the location of new housing.

14.

The NP Examiner explains the reason for recommending the amendment to Policy 1 at paragraph 5.9 of his Report. He says that it would not be appropriate for the NP to require proposals outside of settlement boundaries to conform to development plan policy for the countryside; that responsibility should be for the District Council through its development plan policies. It seems to me therefore, that the Examiner was not offering support for development outside of settlement boundaries. Rather, he was merely seeking to ensure that the matter is dealt with at the appropriate level of plan making. That approach in accordance with the development plan when read as a whole, unless material considerations indicate otherwise.

15.

I recognise that there are many parallels between the considerations in this appeal and those in the Newick case. In particular, the recognition that the policies of the Joint Core Strategy (JCS) and Newick Neighbourhood Plan did not place a cap on development in the settlement. Notwithstanding that the Newick Neighbourhood Plan was made before the full extent of housing allocations in the JCS had been established, it is also relevant that the scale of the proposal in that case was, relative to the size of the settlement, greater than in this case.

16.

Moreover, it was accepted by the Council’s planning witness that the housing numbers for Southbourne in the LP are not maximums. Furthermore, notwithstanding a suggestion to the contrary in the Council’s closing submissions, its planning witness accepted that, had the 34 units been located within the settlement boundary, there would have been no objection on the basis of scale of the proposal. There is no firm evidence to indicate that the proposed 34 units would be incompatible with the scale of Southbourne as a whole or that future occupiers would not be adequately served by reasonably accessible local services and facilities. Indeed the Council accepted that the site is sustainably located in that regard.

17.

I recognise that that the indicative figures in the LP represent a considered policy response to the scale of development to be accommodated in Southbourne. However, the proposal would represent an increase of less than 10% over the 350 dwellings earmarked for Southbourne as a whole. Since the site adjoins the established built up area and is fairly well linked to its facilities, I consider this to be a more useful comparison than the Council’s reference to the 50 dwellings indicated in LP Policy 5. It also distinguishes the proposal from the Hambrook appeal cited by the Council⁶. In that case 120 dwellings were proposed in a considerably smaller settlement where just 25 additional units were allocated in the Local Plan. Consequently, I consider that the scale of the proposal, as opposed to its location, would not be at odds with the broad development plan strategy for new housing as indicated in LP Policies 5 and 20.

18.

The silence of NP Policies 1 and 2 on the question of development outside of settlement boundaries is a not a positive point in favour of the appeal proposal. As such, it does not outweigh the proposal’s conflict with LP Policies 2 and 45 and its lack of accord with the aim of the NP with regard to the location of new housing. Therefore, I find that the proposal would be contrary to the development plan strategy for the location of residential development when considered as a whole. I consider below the weight to be attached to this conflict.”

At paras [19]-[46], the inspector dealt with a number of other matters, including the issue of housing supply, which are not relevant to this case.

At paras [47]-[55], the inspector turned to consider the ‘Planning Balance’:

“47.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires proposals to be determined in accordance with the development plan unless material considerations indicate otherwise. I have found that the proposal conflicts with LP Policies 2 and 45 and does not accord with the aim of the NP with regard to the location of new housing.

48.

Nonetheless, I have concluded that the Council cannot demonstrate a five year supply of housing as required by the Framework. Framework paragraphs 49 and 14 advise that, where a five year housing land supply cannot be demonstrated, relevant development plan notices should be considered out of date and that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole. This consideration distinguishes the appeal proposal from the Wivelsfield decision²³ cited by the Council where it was found that a five year supply existed.

49.

Even taking the Council’s figure for the number of housing units to be delivered over the next year years, the supply land supply position would be marginal. However, I have found that substantially fewer units are likely to be delivered. The appellant also considers that the LP is out of date pending the adoption of the DPD. However, there is nothing to suggest that the settlement boundaries for Southbourne will be affected by the completion of that process. Therefore, whilst Policies 2 and 45 are relevant to the supply of housing, I consider that they should still carry moderate weight in the determination of this appeal. I have also found that the scale of the proposal would not be at odds with the level of residential development in Southbourne indicated in LP Policies 5 and 20. Furthermore Southbourne is identified in the LP as a Settlement Hub where strategic development is anticipated. Nor have I found that proposal would lead to other direct harms. Therefore, notwithstanding the conflict with the terms of LP Policies 2 and 45, in practice, the degree of harm to the development plan strategy would be limited.

50.

Framework paragraphs 184 and 198 advise that neighbourhood planning provides a powerful tool for local people to ensure that they get the right type of development and that proposals which conflict with a made Neighbourhood Plan should not normally be granted. Paragraph reference 41-083-20170810 of the Planning Practice Guidance advises on the application of the Written Ministerial Statement on neighbourhood Planning dated 12 December 2016 following the Hopkins Homes Supreme Court judgement²⁴. It advised that where, as in this case, the criteria in the Written Ministerial Statement apply, significant weight should still be given to the Neighbourhood Plan notwithstanding the fact that the local planning authority cannot demonstrate a five year supply of deliverable housing sites. I recognise that a great deal of time and effort was invested in the preparation of the NP and that local people responded positively to Government policies on neighbourhood planning. Allowing the appeal could be seen to undermine confidence in the planning process. These matters form part of the social dimension of sustainability which, Framework paragraph 7 advises, includes supporting strong, vibrant communities.

51.

However, I have found that the proposal would not conflict with the policies of the NP and would not materially exacerbate congestion at the railway crossing. As such, it would not cause harm in respect of the underlying reason why the NP seeks to restrict development north of the railway line. Moreover, Framework paragraph 8 requires the social, economic and environmental roles of sustainability to be considered together.

52.

Framework paragraph 47 seeks to significantly boost the supply of housing. This too is part of the social dimension of sustainability. The LP examiner’s report found that environmental and infrastructure restrictions in the District justified a housing target which was lower than the OAN. The Council’s housing witness also accepted that the OAN is likely rise in the future. With these consideration in mind, the provision of 34 new dwellings in a location with reasonably good access to local facilities and public transport and no significant environmental or infrastructure constraints would make a valuable contribution to the supply of housing. The proposal would also contribute to the provision of affordable housing in an area of high housing need. Taken together, I consider that these amount to very significant benefits.

53.

The appellant also points to the economic benefits of the proposal through construction employment and activity, spending by future resident at local facilities and the New Homes Bonus. Collectively, these amount to moderate benefits of the proposal.

54.

The proposed publicly accessible open space, new planting and ecological enhancements would generally align with the Green Ring to be established under NP Policy 3. These features would, therefore, offer moderate environmental benefits. The provision of a turning facility at the end of Breach Road would also be a limited benefit of the proposal.

55.

Overall therefore, I find that the adverse impacts of granting permission would not significantly and demonstrably outweigh the benefits of the proposal. As such, the proposal benefits from the presumption in favour of sustainable development set out in Framework paragraph 14 and LP Policy 1. This consideration is sufficient to overcome the conflict with LP Policies 2 and 45 and the aim of the NP with regard to the location of new housing.”

I am grateful to all counsel for their helpful written and oral submissions. What I now set out is only a summary of their detailed submissions.

At the hearing, Mr Gwion Lewis, who represented the Claimant maintained both grounds in his skeleton argument and oral submissions.

The Claimant’s case may be briefly summarised as follows. The NP supported development proposals within settlement boundaries (Policy 1). Those settlement boundaries and specified sites for development are set out in Policy 2 of the NP. The appeal site is not within the settlement boundary nor is it one of the specified sites. Indeed, the Council considered and excluded the proposed development site as a potential area for development when preparing the draft NP. In part, in order to minimise local traffic congestion at the Stein Road railway level crossing, the Council excluded development to its north in Policies 1 and 2 of the NP – which is where the appeal site is located. By virtue of para 198 of the NPPF, the inspector was required to determine whether the proposed development “conflicts” with the NP because, if it did, “planning permission should not normally be granted”.

Mr Lewis contended that the inspector’s DL should be quashed because: (a) in his DL the inspector did not reach a decision on whether it did conflict. In Mr Lewis’ words he “fudged” the issue, deciding that it did not conflict with the “policies” in the NP although it was “at odds” with its aims. He did not determine whether that meant it “conflicts” with the NP; (b) in any event, the distinction between the “aims” and “policies” of the NP is irrational and the proposed development did conflict with the NP because it did not fall within the settlement boundary and specified sites for development covered by Policies 1 and 2 of the NP respectively.

Representing the First and Second Defendants, Mr Guy Williams and Mr Killian Garvey respectively in their skeleton arguments and oral submissions sought to resist the Claimant’s case that the inspector had erred in law in his DL and that his decision should be quashed.

First, they contended that the inspector did reach a decision on whether the proposed development conflicted with the NP. On a fair reading of the DL as a whole, the inspector clearly concluded that it did not. Although he accepted (and all parties agree this is the case) that the proposed development did conflict with Policies 2 and 45 of the LP, he concluded that the NP was silent on development outside the settlement boundary areas and rejected the Claimant’s case on conflict, not least when he stated at para [51] of the DL that the proposal would not conflict with the policies of the NP.

Secondly, having concluded there was no conflict with the NP, the inspector properly and rationally concluded that the proposed development was not in conflict with the “policies” of the NP as it did not deal with development outside the settlement boundary and specified sites. That had been specifically left to the LP, as evidenced by the deletion from Draft Policy 1 following the Examining Inspector’s report. Having found that the proposal did conflict with the LP, and that the “aim” of the NP was to avoid settlement north of the railway line because of traffic congestion problems at the Stein Road level crossing, the inspector found that not to be the effect of the proposed development. Thereafter, the inspector made a rational and lawful ‘planning judgment’ in favour of the development.

Finally, relying on Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P & CR 306, the Defendants contend that relief should be refused even if the claimant succeeds in establishing his grounds because the inspector would have come to the same conclusion carrying out the ‘planning balance’ even if the proposed development was in conflict with the NP.

I can set out the applicable law briefly as it was not in dispute before me with the exception of the proper application of the decision in Crane v SSCLG [2015] EWHC 425 (Admin), with which I will deal later in my discussion of the parties’ submissions.

The principles applicable to a legal challenge to a planning decision are well-established and set out in the “seven familiar principles” in the judgment of Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v SSCLG and Hinckley & Bosworth BC [2014] EWHC 754 (Admin) at [19] as follows:

“19.

The relevant law is not controversial. It comprises seven familiar principles:

(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

The need for caution to avoid “excessive legalism” when reading planning decisions was repeated by Lindblom LJ in Barwood Strategic Land II LLP v East Staffordshire BC [2017] EWCA Civ 893 at [50]:

“50.

I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over-complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above). I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.”

In Suffolk Coastal DC v Hopkins Homes and another [2017] UKSC 37, the Supreme Court recognised that the proper interpretation of planning policy was ultimately a matter for the courts. Nevertheless, Lord Carnwath (at [25]) again recognised the need to approach an inspector’s decision on the basis they were, in effect, experts as specialist planning inspectors:

“ 25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome. (As will appear, the present can be seen as such a case.) Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local. As I observed in the Court of Appeal (Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence (see Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)”

At [26] Lord Carnwath distinguished between:

“issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy…”

In this appeal it is important to note that the Claimant does not contend that the inspector misinterpreted the NP. Rather, it is contended he failed to make the required decision as to whether the proposal was in “conflict” with it and, to the extent he made the decision that it did not, irrationally drew a distinction between the NP’s “policies” and “aims”.

I now turn to deal with each of the grounds.

It is undoubtedly the case that the inspector was required to decide whether the proposed development “conflicts” with the NP by virtue of para 198 of the NPPF. That is common ground between the parties. Mr Lewis submitted that the inspector had not done so. In his DL he had stated that there was “no conflict with the policies of the NP” (para [51]) but had also stated that the proposal was “at odds with” or “not in accord with” the aims of the NP, namely the location of new housing (paras [18] and [47]). That, Mr Lewis submitted, left unanswered the issue of “conflict” with the NP.

Lang J did not see any particular merit in ground 1(a) when granting permission. In my judgment, she was right not to do so. Accepting, for the purposes of ground 1(a), that the distinction is rational, it is plain to me that the inspector concluded that the proposed development did not conflict with the NP.

First, the inspector was clearly aware of the terms of para 198 of the NPPF to which he made specific reference in para [50] of the DL. As the case law identifies, the inspector, as an expert decision-maker in the field of planning, should not be presumed to act in ignorance of the applicable planning law and policy. There is absolutely no reason to consider that he fell into error in this respect reading his DL, as it must be, fairly and as a whole.

Secondly, the structure of his DL is entirely consistent with the inspector having reached a conclusion that the proposed development (1) did not conflict with the NP; but (2) did conflict with the LP.

At paras [6]-[8] of the DL, the inspector set out the relevant policies in the NP and LP. At para [9], he noted that it was accepted, and was common ground between the parties, that the proposal was contrary to LP Policies 2 and 45 as the site fell outside the settlement boundaries and the proposal would not meet an “essential, small scale local need”.

Then at para [10], the inspector summarised the Claimant’s arguments that the proposal was in conflict with Policies 1 and 2 of the NP as it fell outside the settlement boundary and specified sites. At para [11], the inspector summarised the Second Defendant’s position that there was no such conflict. At para [12] he expressed agreement with the Second Defendant that the policies in the NP did not “presume against development outside of the settlement boundaries”. At para [13], however, the inspector noted that the proposal was “at odds with the aims” of the NP with regard to the location of new housing, i.e. not to be located north of the Stein Road railway crossing. At para [14], the inspector concluded, based upon the amendment to the NP following the NP Examining inspector’s report, that proposals outside the settlement boundary were appropriately dealt with under the LP.

The inspector reached his conclusion, having considered other aspects of the LP at paras [16] and [17] of the DL, at para [18]. Having first noted that the NP Policies 1 and 2 did not provide a “positive point” in favour of the proposed development (the locational issue was a matter addressed in the LP) and secondly that the proposed development was in conflict with LP Policies 2 and 45, he concluded that the proposal would be

“contrary to the development plan strategy for the location of residential development when considered as a whole.” (my emphasis)

In my judgment, this can only properly be construed as a conclusion that the proposal was in conflict with the development plan (i.e. the LP and the NP read together) because it was in conflict with the LP alone.

That point is re-enforced by the inspector’s conclusion at para [51] of the DL that the proposal was “not in conflict with the policies of the NP” and further at para [55], when carrying out the ‘planning balance’ when he stated that the presumption in favour of sustainable development:

“is sufficient to overcome the conflict with LP Policies 2 and 45 and the aim of the NP with regard to the location of new housing.”

It is clear that the inspector distinguished between the “policies” of the NP and its “aims”. He concluded that it did not conflict with the former. Of course, that distinction is the subject of challenge in ground 1(b) to which I will turn shortly. In my judgment, providing that is an appropriate distinction to draw, the inspector’s decision was that the proposal did not “conflict” with the NP. For these reasons, therefore, I reject ground 1(a).

The Claimant’s case under ground 1(b) is essentially two-fold. The two points are related and cannot be wholly divorced from each other.

First, the distinction drawn by the inspector between the “policies” and “aims” of the NP is irrational. The Claimant’s case is that they are, in effect, one and the same thing. As the inspector concluded that the proposed development was “at odds” with the aims of the NP, he should, therefore, have concluded that it was in conflict with the NP for the purposes of para 198 of the NPPF.

Secondly, the proposed development was in conflict with the NP as it fell outside the settlement boundary in Policy 1 of the NP and also did not fall within any of the specific settlement areas in Policy 2. It was contrary to the NP to allow housing development elsewhere in the Southbourne area.

Mr Lewis placed reliance upon the case of Crane v SSCLG [2015] EWHC 425 (Admin) where Lindblom J held that a development outside those allocated sites in the neighbourhood plan was in conflict with that plan.

The distinction between the “policies” set out in the NP and its “aims” is, in my judgment, in principle a rational one. Mr Williams and Mr Garvey referred me to decision of the Court of Appeal in R(Cherkley Campaign Ltd) v Mole Valley DC and another [2014] EWCA Civ 567. There, the Court of Appeal distinguished between the “policies” and the supporting text. The latter might be relevant to the interpretation of the “policies” contained in a development plan but whether a proposal conformed with, or conflicted with, the plan was to be determined by reference to the policies it sets out. At [16], Richards LJ (with whom Underhill and Floyd LJJ agreed) said this:

“Leaving aside the effect of the saving direction, it seems to me, in the light of the statutory provisions and the guidance, that when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy. I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text. That applies even where, as here, the local plan states that the supporting text indicates how the polices will be implemented.”

At [19], Richards LJ continued:

“The policy is what is contained in the box. The supporting text is an aid to the interpretation of the policy but is not itself policy. To treat as part of the policy what is said in the supporting text about a requirement to demonstrate need is to read too much into the policy. I do not accept that such a requirement is implicit in the policy or, therefore, that paragraph 12.71 makes explicit what is implicit. In my judgment paragraph 12.71 goes further than the policy and has no independent force when considering whether a development conforms with the Local Plan. There is no requirement to demonstrate need in order to conform with the Local Plan either in its original form or as saved.”

Further, some assistance can be derived from s.38A(2) of the PCP Act 2004 which defines a “neighbourhood plan”, inter alia, 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.” (my emphasis)

In my judgment, the inspector was correct to identify the relevant policies in the NP and, in applying para 198 of the NPPF, to determine whether the proposed development was in conflict with them. The NP identified new sites for housing in and around Southbourne based upon the indicative number of houses allocated to Southbourne in the LP. Policy 1 sets out the settlement boundary for development and Policy 2 identified the allocated sites for settlement. Whilst an underlying “aim” of the plan in Policies 1 and 2 included avoiding development to the north of the Stein Road level crossing in order to avoid traffic congestion, it was not explicitly part of either Policy 1 or Policy 2. The inspector did not, in my judgment, err in law by drawing an irrational distinction between this “aim” and the “policies” expressed in Policy 1 and Policy 2 of the NP.

The crucial issue is whether it was irrational to conclude that proposed development did not conflict with the NP. The argument before me was pains-taking in its detail. Mr Lewis eschewed any challenge based upon the inspector having misinterpreted the NP but, at times, the argument veered close to such a claim.

It is, of course, obvious that the proposed development did not fall within the settlement boundary in Policy 1 of the NP and was not one of the specific sites for development in Policy 2. In addition, Mr Lewis also relied upon the fact that the proposed site had been specifically excluded in the consultation process preceding the adoption of the NP. Mr Lewis submitted that the strategy for housing development was set out in Policies 1 and 2 and excluded development elsewhere, in particular on the proposed site. It was contrary to the strategy of permitting development only south of the Stein Road level crossing.

I do not accept those submissions. First, the proposal was not explicitly contrary to either Policy 1 or 2 as the inspector concluded at para [12] of the DL when he stated that the policies “do not directly presume against development outside the settlement boundaries”. Secondly, however, the policies offered no positive support for development outside the settlement boundary and specified areas (see para [18], DL). Thirdly, the amendment to the NP as a result of the Examining Inspector’s report makes plain that development outside the settlement boundary and specified areas is a matter for the LP. In effect, therefore, as the inspector stated at para [18] of the DL, the NP is “silent” on development outside the settlement boundaries. Whilst, therefore, it was an “aim” to restrict development to the south of the Stein Road level crossing, such a limitation was not expressed in the NP’s Policies 1 and 2 so that it can properly be said that any proposed development there (or anywhere outside the settlement boundary and specified areas) “conflicts” with the NP.

Mr Lewis relied upon Crane but that case does not, in my judgment, provide support to, and make good, his submissions in respect of whether the proposed development in this case was in “conflict” with the NP.

In Crane, the claimant (the developer) challenged the Secretary of State’s decision to refuse planning permission for a housing development in a village on the basis that it would conflict with the relevant (Broughton Astley) neighbourhood plan. It was argued that it was irrational to conclude there was a conflict. Lindblom J (as he then was) rejected the challenge. He concluded that the proposal conflicted with policies H1 (setting out specific allocation of land for housing) and H3 (providing for a “windfall and back land development”) in the neighbourhood plan. Lindblom J’s reasoning at [41]-[48], as relied upon by Mr Lewis, was as follows:

“41.

To borrow words used by the Government in paragraph 183 of the NPPF, the neighbourhood plan embodies the "shared vision" of the community in Broughton Astley for their neighbourhood. It displays a comprehensive approach to planning at the neighbourhood level in the period from 2013 to 2028. It is the means by which the parish council has chosen – as paragraph 185 of the NPPF puts it – "to shape and direct sustainable development in [its] area" in that period. With this in mind, I think there are three points that can fairly be made about the relevant parts of the neighbourhood plan.

42.

First, it is in my view clear from the passages I have quoted from sections 1, 2 and 3 of the plan that the allocations in policy H1 represent both the acceptable location and the acceptable level of new housing development in Broughton Astley in the plan period, albeit with the latitude for approving "windfall" development in policy H3. The allocations in policy H1 are explicitly the result of a process of selection, having emerged as the sites chosen for allocation in the light of public consultation and the evaluation of options (paragraph i of policy H1). They had been selected in preference to other available sites which developers and landowners – including Mr Crane – had suggested (paragraph 3.13). They are also explicitly the planned "maximum" provision of new housing, as one sees in the subsequent policies setting out the requirements for each of them. Apart from the possible bonus of modest "windfall" sites coming forward under policy H3, the 528 dwellings provided for in policy H1 are the entirety of the planned new housing, including the affordable housing required under policy H2. Phased development on the two large allocated sites is given first priority, the identified reserve site adding to the delivery of new housing on those two sites if need be. The supporting text – including paragraph 2.2, "The Core Objectives and Vision of the Neighbourhood Plan", and the "Justification" for policy H1 – shows that the purpose underlying the allocations in that policy was to meet at least the minimum requirement for new housing in Broughton Astley set by the core strategy, without too much expansion into the "surrounding countryside". The allocations in the policy are clearly intended to strike the right balance. The parish council was seeking to achieve reasonable clarity and certainty as to where the new housing in Broughton Astley would go, and not to encourage developers to promote large proposals on unallocated sites. It achieved this without needing to define a settlement boundary, or "Limits to Development" of the kind contemplated by Policy CS2 of the core strategy.

43.

Secondly, it is in my view significant that housing development on sites other than the allocations in policy H1 is deliberately provided for in the way that it is in policy H3. Apart from "windfall" proposals coming forward under that policy, the plan does not provide for, or envisage, any housing development in excess of the 528 dwellings on the sites allocated under policy H1. Policy H3 goes no further than to allow for development "on sites of less than 5 dwellings on previously developed land". If the intention had been to accept the development of housing on larger, unallocated sites, a policy drafted in this way would not have been included in the plan.

44.

Thirdly, in deciding which sites should be allocated for housing and which should not, the parish council considered the sustainability of the new housing it was planning. This can be seen in the policies specifying the particular requirements for the allocated housing sites. It can be seen in the policies relating to other allocations. And it can also be seen in the overarching policy for sustainable development – policy SD1. The plan is composed of policies, both specific and general, which connect to each other and form a coherent whole. The effect is to create a full picture of the development and infrastructure for which the parish council has planned.

45.

All of this, in my view, is abundantly clear from the policies and text of the neighbourhood plan itself, without having to turn to the "Evidence Base". The plan itself is entirely unambiguous. Whether one could have used the "Evidence Base" as an aid to understanding the plan is not, therefore, a question I have to consider. In fact, I do not think it would have been wrong to do that, because the "Evidence Base" is not merely referred to in the plan but also appended to it, and thus incorporated into it. But if I had relied on the "Evidence Base" in construing the plan, it would only have reinforced the interpretation I favour. It confirms that in choosing sites to allocate for housing – as well as for other forms of development – the parish council considered a number of sites put forward by those who made representations, including Mr Crane.

46.

It follows from my understanding of the relevant provisions of the neighbourhood plan that a proposal for housing on a site other than those allocated in policy H1 will only accord with the plan if it finds support in policy H3 as a "windfall" proposal, and is consistent with other relevant policies. Larger proposals for housing on unallocated sites will not accord with the plan. They will be contrary to its strategy for housing development in policies H1 and H3. They will therefore be in conflict both with the neighbourhood plan itself and with the development plan as a whole.

47.

I reject the notion that the plan, properly construed, allows for development such as Mr Crane's so long as it does not conflict with specific policies for the protection of the environment, such as policies EH1 and EH2, and would not frustrate or delay development on any of the sites allocated in policy H1. That is not what the plan says, and not what it means. As Ms Lieven and Mr Smyth submit, such an interpretation could not be squared with the plan's obvious purpose in providing for sustainable development in Broughton Astley. It would undo the balance that was struck when the plan was prepared – the balance between the aim of allocating sites for additional housing to satisfy the core strategy's minimum requirement, the aim of avoiding excessive expansion into the countryside, and other relevant goals. It would negate the strategy which the parish council conceived.

48.

As Ms Lieven points out, Mr Hill's argument cannot be reconciled with the true purpose and effect of the allocations in policy H1. If the interpretation of the plan urged on me by Mr Hill were right, there would have been no point in the parish council going through the exercise of selecting the sites it allocated for housing development and formulating the policies and text which support those allocations. That, I think, is beyond any sensible dispute.”

Lindblom J then concluded at [53]:

“The conclusion at the end of paragraph 17 that Mr Crane's proposal "conflicts with the neighbourhood plan and therefore the development plan as a whole" follows inevitably from a proper understanding of policies H1 and H3. Because the appeal site was not allocated in policy H1 and the appeal scheme was not a "windfall" proposal within policy H3, the proposed development was in conflict with the neighbourhood plan. The proposal did not have to be in breach of any other policy of the neighbourhood plan to be in conflict with it, and with the development plan as a whole. The proposal was in conflict "with the neighbourhood plan" because it did not comply with the plan's strategy for housing development in policies H1 and H3. All of this is straightforward. The Secretary of State's application of the relevant policies of the neighbourhood plan was legally impeccable, his conclusion inevitable. This is one of those cases in which the court can say that the decision-maker's conclusion applying relevant development plan policy was not only reasonable but also plainly right.”

Mr Lewis relied upon Lindblom J’s approach in Crane. He submitted that it was not necessary that the development be expressly prohibited by the NP. Relying on Crane, he submitted that the proposed development was contrary to the strategy for housing development in the NP and was, as a result, in conflict with the NP. It was expressly excluded as an allocated site when the plan was drafted. It was outside the boundary settlement and specified sites in Policies 1 and 2 of the NP.

Despite the attractive way in which he put the Claimant’s case, I do not accept Mr Lewis’ submissions on this issue. As both Mr Williams and Mr Garvey submitted, Lindblom J was concerned with the proper construction and application of the particular neighbourhood plan in that case. He was not seeking to lay down any a priori legal approach or principles, at least beyond those familiar ones in planning cases (see Bloor Homes).

In Crane, the relevant neighbourhood plan was considered by Lindblom J to be, in effect, a comprehensive one (see [42]-[43] and [46]). Consequently, a proposed development that did not fall within the acceptable location and level of new housing development under policy H1 was, in fact, governed by the ‘windfall’ policy in policy H3. If the proposal did not accord with either H1 or H3 it was properly seen as being in conflict with the neighbourhood plan. The development did not fall within either H1 or H3. By contrast, in this case, there is no equivalent of policy H3. As the inspector noted, the NP is “silent” on development outside the settlement boundary and specified areas in Policies 1 and 2 of the NP.

There is a further distinction between the relevant plans. The allocations in the Broughton Astley neighbourhood plan were “explicitly the planned maximum provision of new housing” (see [42]). It is accepted that neither the LP not the NP in this case set a cap on the amount of housing to be provided (see DL at [12]).

The NP in this case is not, therefore, a “comprehensive” plan such that, as in Crane, if the proposed development is not included, it must be seen as in conflict with the NP.

That point is, in my judgment, made absolutely plain by the amendment to the NP following the Examining Inspector’s report. The NP simply does not have anything to say – positively or negatively – about development outside those areas covered in Policies 1 and 2. Such developments are, as the inspector concluded, to be dealt with by the LP.

Further, I do not consider Mr Lewis is assisted by reliance upon Lindblom J’s reference in Crane to whether the proposal did, or did not, accord with the “strategy for housing development in the neighbourhood plan” (see [53]). As Lindblom J made clear at [51] (and indeed in [53] itself), the “strategy was to be found encapsulated in policies H1 and H3”. As I have already pointed out, Policies 1 and 2 of the NP are concerned with a settlement boundary and specified areas for development, they do not deal with development elsewhere in the relevant planning area and, although they may reflect the “aim” of limiting development to the south of the Stein Road level crossing to avoid congestion, they do not “encapsulate” any such limitation as part of the NP’s policies such that a development not in accord with that aim would conflict with the NP. To that extent also, the NP differs from the one considered in Crane.

For all those reasons, the inspector did not fall into error in concluding that the proposed development was not in conflict with the NP. It follows that I reject ground 1(b).

It follows that the Claimant’s challenge fails.

It is not strictly speaking necessary, therefore, to deal with the Defendants’ fall-back position based upon Simplex. I accept, however, that if the inspector had not fallen into error in concluding that the proposed development did not conflict with the NP, he would nevertheless have inevitably reached the same conclusion. The inspector did, of course, conclude that the proposed development conflicted with the LP. He approached his decision, therefore, on the basis that the development was in conflict with the development plan as a whole. He also took into account that it was at “odds” with the aim of avoiding development north of the Stein Road level crossing in order to prevent traffic congestion. He, therefore, had well in mind the issue that would have been the basis upon which the proposed development was in conflict with the NP. But, at paras [47]-[55] he carried out the ‘planning balance’ recognising the underlying “aim” of the NP to restrict development north of the Stein Road railway crossing in order to avoid congestion. He concluded that the development would not “materially exacerbate congestion at the railway crossing” (para [51]). That finding is not challenged. The inspector specifically noted the importance and weight that should be given to a neighbourhood plan and its preparation (para [50]). The inspector identified the benefits of the proposal: the “very significant benefits” to housing and affordable housing delivery (para [52]); the “moderate” economic and environmental benefits (paras [53] and [54]); and the “limited benefits” of a “turning facility” as part of the development (para [54]). The inspector then struck the balance, having regard to the presumption in favour of sustainable development, in favour of granting permission (para [55]). I accept Mr Williams’ submissions set out at paras 40-49 of his skeleton argument, that having regard to the matters set out and considered by the inspector at paras [47]-[55] of the DL, he would inevitably have reached the same conclusion in striking the ‘planning balance’ and would have granted planning permission. I would, therefore, have refused relief in those circumstances.

The Claimant’s challenge by way of statutory review is dismissed.