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Court of Appeal backs judge and inspector’s decision

Words: Laura Edgar
New rural housing / Shutterstock_425872609

The Court of Appeal has upheld decisions issued by a planning inspector and a planning judge to dismiss a developer’s appeals following Aylesbury Vale District Council’s failure to determine its application.

Paul Newman New Homes Limited sought outline planning permission for a development comprising 50 homes and associated facilities on land north of Leighton Road in Soulbury, Buckinghamshire.

The case was considered by Lady Justice Andrews DBE, Lord Justice Peter Jackson and Lord Justice Coulson. In the decision document, Andrews explained that the central issue was whether an “experienced planning inspector and a specialist planning judge in the High Court (Sir Duncan Ouseley) correctly interpreted paragraph 11d) of the 2018 version of the National Planning Policy Framework (NPPF)”.

The 2018 version of the NPPF has been replaced by the 2091 version but, as Andrews noted, paragraph 11d) has “not been changed in any material respect”.

The paragraph is entitled ‘The presumption in favour of sustainable development’.

The council indicated in a letter in November 2018 sent to the planning inspector that it would have refused the application, as it would urbanise the rural nature of the entrance to the town along Leighton Road. The changes would be contrary to policy GP.35 of its 2004 local plan (which the judges said was applicable despite its age) and the NPPF.

In January 2019, the inspector identified two issues – the effect of the development on the rural character of the site and whether the council could demonstrate a five-year housing land supply. Her findings led her to conclude that the housing benefit did not outweigh the harm and so she dismissed the appeal. Judge Ouseley found the inspector was right in her approach and upheld her decision.

The developer appealed to the Court of Appeal on two grounds:

  1. The judge erred in construing paragraph 11d) of the NPPF contrary to its natural meaning and when read in context.
  2. The judge erred in agreeing with the inspector’s construction of policy GP.35 of the local plan that the policy was intended to guide decision-making at the outline application stage.

On ground 2, Andrews said the inspector and the judge “fairly and rightly” acknowledged that elements of GP.35 were more relevant to a reserved matters (full) application than to an outline application.

“However, as the judge said, that did not mean that the inspector fell into error when she decided that there were aspects that remained relevant to the fundamental question of whether a satisfactory development could be achieved in principle. As the judge pointed out at paragraph 60 of his judgment, the drafting of local plan policies is not as rigorous or necessarily as logically and clearly structured a process as the drafting of a statute.”

Andrews agreed with Judge Ouseley’s interpretation of the policy and therefore, the council’s understanding of its policy and the inspector's interpretation of it were correct. She dismissed the appeal on ground 2.  

Like the judge, Andrews did not find it helpful to consider the language of the 2012 NPPF, which the developer’s lawyer relied on. “The 2012 NPPF was replaced by the 2018 version, which uses different language and, unlike its predecessor, deals in one place with all the considerations that determine whether the tilted balance should apply.”

She also agreed that “the concept of ‘relevance’ means that the policy or policies must have a real role to play in the determination of the application, but there is no requirement that it or they should be enough in themselves to enable the decision-maker to grant or refuse that application”.

The inspector and the judge, Andrews explained, correctly concluded that the policy GP.35 “was not confined in its ambit to matters of detail arising only at the reserved matters stage, the question whether that  policy was relevant and how important it was to the determination of the  application under consideration were quintessential matters of planning judgment”.

The interpretation of paragraph 11d) was upheld and the appeal dismissed on ground 1, too.

The decision document can be found here (pdf).

  • Aylesbury Vale District Council became part of Buckinghamshire Council last year.

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