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

Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives the development plan statutory priority. It imposes a distinct duty from the obligation under section 70(2) of the Town and Country Planning Act 1990 to have regard to relevant matters.

A decision-maker must identify and interpret relevant plan policies, decide whether the proposal accords with the plan, identify and weigh other material considerations, and determine whether they justify departure from the plan. A general balancing exercise is insufficient where the reasons do not show recognition of the plan’s priority. Housing need and affordable housing may justify development on greenfield land, but their weight must be assessed against the relevant restriction.

Following a public inquiry, a planning inspector allowed Leeds & London Properties Ltd’s appeal against Calderdale Metropolitan Borough Council’s refusal of permission for 21 dwellings on a greenfield site in Walsden.

The Council challenged the decision under section 288 of the Town and Country Planning Act 1990. On 20 November 2009, His Honour Judge Grenfell quashed the inspector’s decision, holding that the inspector had misunderstood section 38(6) of the Planning and Compulsory Purchase Act 2004. The Secretary of State appealed, arguing that the inspector’s reasoning showed that the correct test had been applied or that any error was immaterial. The central issue was whether the decision letter demonstrated recognition of the statutory priority given to the development plan.

1. Appeal dismissed. The Court of Appeal upheld the decision to quash the inspector’s determination. The additional challenge concerning the assessment of available and deliverable housing land did not require determination.
2. Section 70(2) of the Town and Country Planning Act 1990 requires regard to be had to the development plan and other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 imposes the additional requirement that the determination accord with the development plan unless material considerations indicate otherwise. The development plan therefore has statutory priority, although the provision does not prescribe the weight to be given to individual considerations.
3. Following City of Edinburgh Council and Secretary of State for Scotland [1997] 1 WLR 1447, the decision-maker must identify and interpret relevant plan policies, determine whether the proposal accords with the plan as a whole, identify material considerations for and against the proposal, assess their relative weight, and decide whether they justify departure from the plan. The factual assessment and weighing are for the decision-maker, subject to review for legal error, failure to consider relevant matters, or irrationality.
4. The inspector identified relevant housing and affordable-housing considerations and acknowledged conflict with policy H9. However, his direction that he merely had to have regard to the development plan and other considerations, together with his subsequent balancing exercise, did not show that he had recognised H9’s statutory priority. He did not adequately examine the policy importance of retaining greenfield land or weigh the site-specific loss against the housing benefits. There was a real risk that the decision rested on a false legal premise. The error was therefore material and the decision could not stand.
5. The restriction on residential development on unallocated greenfield land did not mean that development was never permissible. Housing need and affordable housing could be material considerations capable of justifying departure, but only after the statutory priority of the development plan had been properly addressed.

Elias LJ and Maurice Kay LJ agreed with Pitchford LJ.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 1268, the appeal was dismissed and the quashing of the inspector’s decision was upheld.
• Administrative Court: On 20 November 2009, His Honour Judge Grenfell quashed the inspector’s decision under section 288 of the Town and Country Planning Act 1990 because of an error in applying section 38(6) of the Planning and Compulsory Purchase Act 2004.