Secretary of State appeal decision on new NPPF quashed

Fri, 14 Jun 2019

Today (14 June 2019), Mr Justice Dove has handed down judgment in one of the first statutory review challenges to consider the Revised National Planning Policy Framework, since its publication in July 2018.

The High Court quashed the Secretary of State’s decision (contrary to his Inspector’s recommendation) to refuse planning permission for residential development for 203 dwellings in Woburn Sands, Milton Keynes.

The judgment will be of interest to all those working with NPPF paragraph 11d on any subject matter and separately all those working on the test of “specific, deliverable sites” in the residential context.

In short, decision-makers applying NPPF 11d will now have to apply what may be described as a “holistic” approach to decision making. As the judge said:

“Having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.”

Further, it is incumbent upon decision-makers to explain how they have calculated housing land supply: a simple figure will not suffice

The Facts

Wavendon Properties brought a claim for statutory review seeking to quash the decision of the Secretary of State for Housing, Communities and Local Government to dismiss its appeal for a residential development of 203 dwellings in Woburn Sands, Milton Keynes.

The Inspector had identified that the presumption in favour of sustainable development was engaged, by reason of a failure to demonstrate a five year supply of housing land, and further identified that two settlement boundaries policies (in a Local Plan and a Neighbourhood Plan respectively) were out of date.

He recommended that permission be granted.

In interim post-inquiry correspondence prior to the decision, the Council first conceded that it did not have a five year supply of housing and did not provide any evidence to correct submissions made the Appellant identifying that the Council’s housing land supply was below 5 years.

The Decision Under Challenge

The Secretary of State’s decision:

(a) agreed that the settlement boundary policies were out of date;

(b) identified that the Council’s “measured estimated deliverable supply is roughly in the region of 10,000– 10,500” (a figure in excess of 5 years, but with no further explanation of the working)

(c) did not identify that the presumption in favour of sustainable development was engaged.

The Claim

The Appellant brought a claim on various grounds including:

(1) Failure correctly to interpret NPPF paragraph 11d

(2) Failure correctly to interpret NPPF Glossary on “deliverable” supply, including a failure to give reasons:

The Judgment: Interpretation of NPPF 11d: “The Most Important Policies for Determining the Application Are Out-Of-Date”

Paragraph 58 provides the judge’s core reasoning on the interpretation of NPPF 11d:

“…The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision. This approach is also consistent with the Framework’s emphasis (consonant with the statutory framework) that the decision-taking process should be plan-led, and the question of consistency with the development plan is to be determined against the policies of the development plan taken as a whole. A similar holistic approach to the consideration of whether the most important policies in relation to the decision are out-of-date is consistent with the purpose of the policy to put up-to-date plans and plan-led decision-taking at the heart of the development control process. The application of the tilted balance in cases where only one policy of several of those most important for the decision was out-of-date and, several others were up-to-date and did not support the grant of consent, would be inconsistent with that purpose.”

On the specific facts, the judge declined to quash the decision on the basis of a failure to identify that the presumption was engaged, on the facts in this case.

The Judgment: Interpretation of NPPF 67/73/Glossary: “Deliverable”

Paragraphs 67 and 68 provide the core reasoning on the interpretation of “deliverable”. The judge noted that the facts were unusual, but nonetheless, identified

“67…By simply asserting the figures as his conclusion, the First Defendant has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion. Simply asserting the figures does not enable any understanding of what the First Defendant made of the Inspector’s conclusions which he accepted in paragraph 17 of the decision letter, and how they were taken into account in arriving at the final figures in his range. Whilst [the First Defendant] was in my view correct to point out in his submissions that arriving at the range of 10,000-10,500 was not inexplicable, in the sense that the First Defendant had the materials before him to alight upon those figures, nonetheless the exercise which [the First Defendant] undertook in his submissions set out above demonstrated the difficulty with the absence of reasons in this case. There were, no doubt, any number of adjustments or permutations which might have been taken to the figures in the SPRU Report to arrive at the First Defendant’s conclusion. However, by simply asserting the figures in a range makes it a matter of pure speculation as to how the First Defendant arrived at the figures which he did. How he arrived at the range and had resolved the issues in relation to the deliverable supply on the evidence before him is entirely undisclosed.

  1. Having failed to disclose how the First Defendant arrived at the range which he did, the Claimant is entitled to contend that it is left without any understanding of the treatment of the evidence (including the SPRU Report) so as to arrive at the range stated, and unable to evaluate, therefore, how the relevant policy on deliverability was applied and how the conclusion was reached. I accept the Claimant’s submission that the need for the range to be in some way explained is not requiring reasons for reasons, it is simply requiring reasons for a conclusion which was pivotal in relation to the application of the tilted balance in this case, and which derived from figures which had not been canvassed as an answer to the question of what the Second Defendant’s housing land supply was anywhere in any of the material before the First Defendant prior to the decision letter. In terms of the South Buckinghamshire test, it also left both the Claimant and the Second Defendant unable to assess how future evaluation of housing deliverability should be undertaken. Indeed, in the Second Defendant’s five year housing land supply position statement published in January 2019, after the decision, they noted, having observed that the First Defendant felt the Second Defendant could demonstrate a supply of between 10,000-10,500 dwellings, that “no detailed explanation has however been provided by the SoS as to how this figure has been calculated.”

Separate observations were made, at [69] as to the application of the Court of Appeal’s decision in Hallam Land Management Limited v SSCLG & Eastleigh Borough Council [2018] EWCA Civ 1808; [2019] JPL 63:

  1. …Firstly, the question in the present case was not how far the First Defendant had to go in calculating the extent of any shortfall in the five year housing land supply. In fact, the First Defendant provided an answer as to what was considered to be the five year supply of land. The issue here is whether or not having arrived at wholly new figures for the housing land supply, and taken account of various conclusions both the Inspector and the SPRU Report, the First Defendant was required to give some reasons for having arrived at the figures he did, those figures for the first time suggesting that the Second Defendant could demonstrate a five year housing land supply. I am in no doubt that the First Defendant was required to provide some reasoning to explain how he had treated the material before him so as to arrive at his conclusion as to the range of the supply of deliverable land available to the Second Defendant. Further, I am satisfied that the Claimant has been prejudiced by the absence of those reasons since without them the Claimant is unable to understand why the conclusions of the SPRU Report have not been accepted, and what was done in relation to either the Inspector’s conclusions or the material in that report so as to arrive at the conclusion which had the significant effect upon their case of depriving them of the tilted balance when the decision came to be forged.

The judge therefore determined that the decision should be quashed.

Read the full judgment

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