Secretary of State consents to Judgment on his unlawful prematurity approach to an appeal for 189 dwellings in Cheshire East

Jeremy Cahill QC and Jenny Wigley

In an Order sealed on 3 July 2015, the Secretary of State has consented to the quashing of his own decision dated 17 March 2015 to dismiss an appeal against refusal of outline planning permission for up to 189 dwellings on land off Audlem Road, Stapeley, Nantwich.  His decision to dismiss the appeal was contrary to the recommendations of his appointed Inspector and relied solely on the so called “adverse impacts of adopting a piecemeal approach” to development prior to the adoption of the Council’s emerging plan.  In consenting to judgment, the Secretary of State has accepted that his decision on this basis was unlawful and could not stand in circumstances where he had failed to have regard to his own policy on prematurity in the National Planning Practice Guidance. 

In common with many previous similar appeals, the Inspector had recommended approval of the appeal, notwithstanding that the site is outside the settlement boundary.  The Inspector reasoned that the Council could not demonstrate a five year supply of housing land as required by the National Planning Policy Framework (NPPF) and, as such, the local plan policies restricting development within the open countryside were to be regarded as out of date.  Accordingly, there was a presumption in favour of granting planning permission provided that the development was to be regarded as sustainable.  On concluding that the development could indeed be regarded so, he recommended that the appeal be allowed.  This approach followed a consistent approach by other Inspectors and by the Secretary of State to the application of paragraphs 49 and 14 of the NPPF.

Against this, the rejection of the recommendation only on the basis of the objection to the “piecemeal approach” was similar to what happened in the recent case in Woodcock Holdings Limited v. Secretary of State CLG [2015] EWHC 1173 (Admin).  In that case, Holgate J held that it is “wholly unsatisfactory” for the Secretary of State to disagree with the Inspector’s carefully reasoned recommendation that the appeal should be allowed by putting forward sparse reasoning on prematurity (Woodcock, para 117,22).

Muller Property Group brought a statutory challenge under s.288 Town and Country Planning Act 1990 on the basis of Secretary of State’s failure to have regard to the prematurity policy, his inconsistency of decision making and an error of fact relating to the figures for best and most versatile land (the latter ground has also been accepted in the consent order).  Inherent in the way paragraphs 14 and 49 of the NPPF work and the way in which they had been applied up until recently is that development will be allowed in a so-called “piecemeal” manner in circumstances where no five year housing land supply can be demonstrated.  The departure from this way of applying the relevant parts of the NPPF represented a clear inconsistency from the Secretary of State’s (and Inspectors’) previous approach.  Further, as has been recognised by the Courts: “The mere fact that a change is proposed to the development plan of course does not mean that all applications for development have to be put on hold.  Given the propensity for change in policy and plans, that would bring the entire planning system to an effective halt.”  (per Hickinbottom J in Stratford and Avon DC v. Secretary of State [2013] EWHC 2074 (Admin)).

In light of the recent decision in Woodcock, the Secretary of State’s concession, a few weeks before the hearing, did not come as a big surprise.  However, it is important to note that in such circumstances Claimants have to be pro-active in persuading the Secretary of State to focus on the case early to avoid unnecessary costs.  The usual s.288 procedure means that Defendants do not need to focus or reveal their hand until the date their skeletons are due, usually just two weeks before the hearing.  This problem was originally recognised by Mr Justice Collins in Bovale Limited v. Secretary of State CLG [2008] EWHC 2143 (Admin), following the events in Dinedor Hill Action Association v. Herefordshire DC [2008] EWHC 1741 (Admin).  Back in 2008, Mr Justice Collins sought to introduce a variance of the rules so that the Secretary of State and other defendants would be required to give at least an indication of their summary grounds of resistance at an early stage.  But, this ruling was reversed by the Court of Appeal which decided that Collins J had no jurisdiction to introduce such a new rule (Bovale Limited v. Secretary of State CLG [2009] 1WLR 2274).

However, with the introduction of the Planning Court, the ability to impose the mechanism proposed by Collins J now finds expression in PD54E para 3.5 which states:

“The Planning Court may make case management directions, including a direction to any party intending to contest a claim to file and serve a summary of this grounds for doing so.”

In this case, Muller Property Group made use of this provision and were successful in obtaining an Order to this effect from Hickinbottom J, something which ultimately prompted both Defendants to consent to judgment earlier than they otherwise would have.  The Secretary of State indicated he would concede the day before the summary grounds were due.  The Order was necessary as both Defendants had been resisting any requirement to serve summary grounds of resistance under para 3.5, the Council on the basis of an argument that the provision does not apply to s.288 statutory review claims which are governed by Part 8, rather than Part 54 which applies to judicial review.  Whilst this argument was not ultimately tested (as the Order was granted ex parte and then not resisted further), the authors are of the firm view that it must be wrong.  Practice Direction 54E is headed “Planning Court Claims” and plainly applies to all such claims including statutory review claims.  In any case, there would be no sense in applying para 3.5 to just judicial review claims as the procedure in such claims requires an early service of Summary Grounds of Resistance automatically with no need for an Order under para 3.5.

So, an interesting and informative case, both on the substantive illegality of the Secretary of State’s objection to a “piecemeal” approach in the absence of proper prematurity consideration, and a useful demonstration of the potential effectiveness of PD54E para 3.5

Jeremy Cahill QC and Jenny Wigley are barristers at No5 Chambers, and acted for the Claimant, Muller Property Group.