Out-Law News 3 min. read

High Court upholds communities secretary development refusal over neighbourhood plan housing policy conflict


The High Court has upheld a decision by communities secretary Eric Pickles to refuse permission for a development proposal that conflicted with housing policies in a Leicestershire neighbourhood plan, in an area without a demonstrable five year supply of housing land.

Last April, Pickles rejected developer Ivan Crane's appeal against a decision by Harborough District Council to refuse planning permission for a 111-home development on open and undeveloped land in the Leicestershire town of Broughton Ashley. A decision letter (33-page / 320 KB PDF) on behalf of the communities secretary said he gave "very substantial negative weight" to the conflict of the proposals with policies in the neighbourhood plan for the town, which had come into effect in January 2014.

Crane applied to the High Court for an order quashing Pickles' decision, arguing that the communities secretary had misunderstood and misapplied policies in the neighbourhood plan and the National Planning Policy Framework (NPPF), that he had given unlawful reasons for his conclusions and that his decision-making had been irrational.

In a decision dated 23 February, High Court judge Mr Justice Lindblom rejected Crane's application on all grounds. The judge said Pickles' "interpretation of the relevant policies of the neighbourhood plan was legally impeccable, his conclusion inevitable". He found Pickles had been right to conclude that development at the proposed site conflicted with policies allocating specific sites for housing and allowing for limited "windfall" development on "sites of less than five dwellings on previously developed land".

Crane had argued that developments such as his own proposal should be permitted unless it conflicted with policies for the protection of the environment or would frustrate or delay development at the allocated sites. However, the judge said such an interpretation would "negate the strategy which the parish council had conceived" and would have rendered pointless the exercise of selecting sites for housing development.

In coming to his decision, Pickles had considered local housing policies, including those in the neighbourhood plan, to be "out-of-date" in accordance with paragraph 49 of the NPPF, due to the lack of a demonstrable five-year supply of housing land in the area. Crane had argued that it was irrational of the communities secretary to subsequently apply "very substantial weight" to conflict with the same policies when concluding that the "adverse impacts" of the proposal "significantly and demonstrably outweigh[ed] the benefits".

Mr Justice Lindblom rejected this submission. The judge said the presumption in favour of sustainable development under paragraph 14 of the NPPF "does not displace the 'presumption in favour of the development plan'" and that "how much weight should be given to conflict with a plan whose policies for the supply of housing are out of date" was "a matter of planning judgment".

Mr Justice Lindblom said Pickles had been correct to assess the balance between the benefits and adverse impacts of the proposal "against the policies in [the NPPF] taken as a whole, including its policies on neighbourhood planning as well as policy on housing supply".

"In the end ... one comes back to the most elementary principle of planning law ... that the weight to be given to material considerations, including statements of government policy, is a matter for the decision-maker to judge, subject only to the constraint of rationality", said the judge. Dismissing the application, Mr Justice Lindblom said Pickles had delivered "a wholly unimpeachable planning judgment".

“This decision shines a light on the growing body of planning appeal decisions where the secretary of state has put his weight behind the neighbourhood planning process by giving emerging or adopted neighbourhood plans substantial or very substantial weight," said Marcus Bate, planning expert at Pinsent Masons, the law firm behind Out-law.com.  "That planning and political judgment may be unattractive to many developers, but the restrictive rules of judicial review mean that its lawfulness is very difficult to challenge.”

“The judgement is remarkably conventional and logical from a legal perspective, with law being held to trump policy and weighting of policies being left to the discretion of decision-makers. However, it highlights a worrying lack of logic and consistency between competing NPPF policies and the statutory presumption in favour of the development plan," Bate said.

"Policies can at the same time be treated as 'out-of-date' and yet be given 'very substantial weight'. Having introduced the presumption in favour of sustainable development to support more development where plans are out-of-date, the government’s political commitment to neighbourhood planning at all expenses now threatens to fundamentally undermine its efficacy,” Bate said.

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