Alderney Estates Ltd. v Secretary of State for Transport, Local Government and the Regions & Anor

Under Planning Policy Guidance Note No 3, the presumption that previously developed sites should be developed before greenfield sites is not an absolute prohibition on greenfield development. In determining a planning application, the decision-maker must treat housing supply and the proper operation of the development process as relevant considerations. The weight given to those considerations remains for the decision-maker. Paragraph 34 is relevant to the application of paragraph 32, but it is not a trumping factor and does not automatically override the presumption. The court’s role is to determine whether the decision-maker’s construction of the policy is legally possible, rather than to negotiate or prescribe the policy’s application.

A proposal for residential development on a greenfield site in Lancashire had been allocated in the adopted and emerging local plans. After the borough council failed to determine the application, the inspector recommended permission, but the Secretary of State dismissed the appeal, relying principally on the presumption in Planning Policy Guidance Note No 3 that previously developed sites should precede greenfield sites.

The Administrative Court, before His Honour Judge Rich sitting as a Deputy Judge of the Queen’s Bench Division, held that the Secretary of State’s decision was flawed and remitted the matter for redetermination. The Secretary of State accepted that the decision required reconsideration but appealed the judge’s reasoning on the relationship between paragraphs 32 and 34 of the guidance. The central issue was whether paragraph 34 was relevant to a development-control decision and how it affected the paragraph 32 presumption.

Disposition. The appeal was resolved by varying the wording of the remittal order. The matter was to be redetermined in the light of the judgment below as clarified by this judgment. The Secretary of State was ordered to pay the respondent’s agreed costs of £15,000.

1. Paragraph 38 of Planning Policy Guidance Note No 3 makes the paragraph 32 presumption relevant when determining a planning application for a greenfield site allocated for housing. Paragraph 38 does not exclude other relevant considerations.
2. Paragraph 34 is relevant at the development-control stage. The reference to the operation of the development process includes the release of sites for development, as well as the allocation of sites. Paragraph 34 therefore informs the application of paragraph 32.
3. The paragraph 32 presumption is not a rigid or trumping rule. It does not prohibit all greenfield development while any previously developed site remains capable of development, nor does the absence of a five-year supply automatically require permission for a greenfield site. The presumption must be brought into the decision-maker’s balance, but it may carry little weight or be overridden by other factors. The weight to be given to it is for the decision-maker.
4. The court’s role is limited to deciding whether the decision-maker adopted a legally possible construction of the policy. The court should not negotiate the wording of government policy or substitute its own assessment of the appropriate balance. The policy must ultimately be applied to the particular facts with adequate reasons.
5. The Secretary of State’s original decision remained flawed because it lacked evidence and adequate reasons for the asserted likelihood or possibility of further sites emerging. That issue had to be reconsidered on remittal.

1. High Court, Queen’s Bench Division, Administrative Court: His Honour Judge Rich held that the Secretary of State’s decision was flawed and remitted the matter for redetermination.
2. Court of Appeal (Civil Division): In [2003] EWCA Civ 346, the court clarified the relationship between paragraphs 32 and 34 of Planning Policy Guidance Note No 3, varied the wording of the remittal order, and ordered the Secretary of State to pay the respondent’s costs.