Calderdale Metropolitan Borough Council v Secretary of State for Communities & Local Government & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, an unqualified development-plan prohibition creates a presumption against permission. The decision-maker must determine whether material considerations are sufficiently weighty to displace that prohibition. Merely taking the policy into account is insufficient.

A planning decision must be read as a whole, but that approach cannot cure a fundamental misdirection which has affected the decision-making process and leaves it unclear whether the statutory test was applied. Distinct planning-policy criticisms and alleged procedural unfairness will not succeed without evidence of misunderstanding or substantial prejudice.

The claimant local planning authority challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal and granting permission for 21 dwellings on unallocated greenfield land at Walsden.

The inspector had considered the development plan, housing-land supply, affordable housing, national policy and regional policy. The principal issue was whether he had correctly applied section 38(6) of the Planning and Compulsory Purchase Act 2004 to policy H9, which stated that residential development on unallocated greenfield land would not be permitted.

1. The claim succeeded. The inspector’s decision was quashed because the inspector misstated and failed to apply the section 38(6) test.
2. Where the development plan contains an unqualified prohibition on residential development on unallocated greenfield land, section 38(6) creates a presumption in favour of that prohibition. The decision-maker must identify material considerations and decide whether they indicate that the prohibition should not be given priority. It is insufficient merely to balance the prohibition as one consideration among others.
3. The decision had to be read as a whole, and the inspector had recognised that permission would breach policy H9. However, the decision did not explain the importance or primacy of retaining the greenfield land, or why the other considerations displaced the policy. References to the site being surrounded by development and within a housing area were no more than possible material considerations.
4. The error was material. Since the inspector described the substantive decision as finely balanced, it was unclear whether he would have reached the same conclusion had he applied the correct statutory test.
5. The challenges concerning housing-land policy failed. The judgment did not interpret PPS3 as eliminating the distinction between deliverable sites for years 1–5 and developable sites for years 6–10 and 11–15. The inspector’s observations and failure to invite further submissions did not amount to a breach of natural justice.
6. The affordable-housing challenge also failed. Policy H13 did not override H9, but the general need for affordable housing was a material consideration which the inspector was entitled to take into account. Those matters could not cure the fundamental section 38(6) misdirection.

This was a first-instance judicial review claim in the Administrative Court. The challenged decision was an inspector’s appeal decision granting planning permission. The court quashed that decision.