Thea Osmund-Smith successful in High Court

Thu, 06 Dec 2018

Barrister - Thea Osmund-Smith 2018

Judgment was recently handed down in West Oxfordshire District Council v (1) Secretary of State for Housing Communites and Local Government (2) Rosconn Strategic Land Limited  [2018] EWHC 3065 (Admin).

It is important in understanding the approach of decision takers to emerging plans, and to the application of para 48 of the NPPF:

“Local planning authorities may give weight to relevant policies in emerging plans according to:

a)  the stage of preparation of the emerging plan (the more advanced its preparation, the greater the weight that may be given); ?

b)  the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and ?

c)  the degree of consistency of the relevant policies in the emerging plan to this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given). “

The decision is important for understanding the approach to emerging local plans and the weight they should attract. It may or may not be necessary to address all of the factors at NPPF48, depending on the evidence put before the Inspector by the parties and the extent to which there is any dispute in respect of them.

The decision also demonstrates that a Plan which is at an advanced stage in the examination process may only attract limited weight if there is further consultation to be carried out on main modifications – even if the Inspector has indicated the Plan is capable of being found sound as was the case here.

Thea acted on behalf of Rosconn at the Inquiry and secured permission for 29 new homes in Enstone, West Oxfordshire following a 4-day Inquiry in February (APP/D3125/W/17/3182718?).

The main issues in the appeal were landscape and character impacts, and harm to nearby heritage assets. The Council could not demonstrate a 5 year housing land supply and so the tilted balance was engaged. The Inspector, having concluded that none of the reasons put forward for opposing the development established that the harm would be significant or would demonstrably outweigh the benefits, granted permission.

The challenge concerned the Inspector’s treatment of the then emerging West Oxfordshire Local Plan, which was at a relatively advanced stage.

The Inspector dealt with the eLP in three paragraphs in his decision letter and concluded it could only attract “limited weight” for the following main reason: 

“20. I acknowledge that the Examination is at a relatively advanced stage, and the Inspector has indicated that, subject to further modifications, the emerging Local Plan is likely to be capable of being found legally compliant and sound.?All that said, and importantly, the Examination is not concluded and the consultation process on main modifications is still in progress. Further liaison is required with the Inspector in respect of the wording of some of the further modifications. Importantly, the Inspector has yet to produce his final report. In these circumstances, and in accordance with Paragraph 216 of the Framework, I consider only limited weight can be given to the Emerging Local Plan.”

The focus was on the stage that the eLP had reached, and the Inspector did not explicitly address the other two bullet points in NPPF para 216 (now NPPF 48) relating to the nature and extent of objections and the consistency of emerging policies in the NPPF – they were not in any event, points of dispute between the parties. It was not said that the eLP was inconsistent with the NPPF, and the need for further consultation on the main modifications meant that the nature and extent of objections could not yet be ascertained.

The Council claimed the eLP had been a principal controversial issue at the Inquiry, and that the Inspector had failed to properly apply para 216 of the NPPF (2012) in determining the weight to be given to the eLP policies. It was also submitted that the Inspector failed to identify a conflict with relevant policies of the eLP and weigh that conflict in the planning balance.

In dismissing the claim, David Elvin QC, sitting as Deputy High Court Judge found that:

  1. the status of the eLP policies and their significance was of marginal significance to the issues before the inquiry and the focus was on the substantive planning issues themselves. The eLP was not a principal controversial issue, and the Council had sought to elevate a relatively minor issue at the inquiry into a major issue before the Court.
  2. That is unsurprising given that the Council had at no stage (until the High Court hearing) alleged that the eLP gave rise to some new harm that was not already addressed by the extant development plan to which the Inspector had regard.
  3. The Judge also noted that the Council’s evidence and Closing Submissions did not treat the eLP issues as controversial or of key significance, which emphasises the importance of closing submissions  - should they later need to be relied on in court!
  4. The Judge did not regard the limited weight given by the Inspector to the eLP as irrational.

Importantly the Judge rejected the contention that a mechanical application of para. 216 was appropriate. Distinguishing Woodcock Holdings Ltd. v Secretary of State [2015] JPL 1151, the Judge accepted that the relevance and treatment of the different factors in para 216 is largely dependent upon the significance of the ELP to the determination of the appeal, and upon the information provided by the parties. It would vary from case to case.

The Judge also found that given the same substantive issues were covered in the appeal by extant development plan, it was difficult to see how the presence of emerging policies dealing with the same issues, could have made a difference:

“Since the Inspector (with some adjustment of weight for NE1) found the relevant development plan policies not only to be consistent with the NPPF and of full weight, but found the proposals to conflict to some degree with NE1 and NE3, it is difficult to conceive how the presence of draft policies to similar effect could have made a sensible difference.”

The Judge indicated that even if that had been an error, the outcome would have been the same, reiterating the importance of understanding whether technical challenges of the sort in West Oxfordshire would in fact have made any difference to the outcome, and asking the Court at an early stage to use its discretion not to quash:

“Finally, in view of my conclusions on the issues, including the specific points raised in connection with EH1 and EH3, I am not satisfied that even if the Inspector had made an error with regard to those matters that it would have made a difference to the outcome. Had it been necessary, I would, exceptionally, have refused to quash the decision for those errors, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] P.T.S.R. 1041 at 1060.”

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