Larkfleet Ltd v Secretary of State for Communities and Local Government & Anor

A planning policy which expects site allocations to be made through an emerging area action plan does not create an absolute bar to permission for an unallocated site. Its non-inclusion in the plan is a material consideration to be weighed with all other relevant matters.

Prematurity may justify refusal where permission would prejudice the plan-making process by predetermining decisions about the scale, location or phasing of development. The concept is not confined to decisions about other sites and does not create an automatic hurdle. The weight given to prematurity depends on the circumstances of each case.

A decision-maker need address only the main issues in dispute. A court should not infer a failure to consider a matter merely because it was not expressly mentioned in the decision letter.

Larkfleet Limited applied under section 288 of the Town and Country Planning Act 1990 to challenge the Secretary of State’s dismissal of its appeal against refusal of outline permission for a sustainable urban extension of at least 1,000 dwellings north of Grantham.

The Inspector had identified conflict with heritage and highways objectives, risks to the delivery of identified sustainable urban extensions and associated roads, and prejudice to the emerging Grantham Area Action Plan. The Secretary of State endorsed those conclusions. The challenge alleged that the development plan had been misapplied, that prematurity had been construed too broadly, and that later representations about infrastructure funding had been inadequately considered.

1. Application dismissed. The Secretary of State’s decision was lawful and the three grounds of challenge failed.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990, the decision-maker had to apply the development plan and take account of material considerations. Planning policies were not to be construed as statutory or contractual provisions, although their meaning had to be properly understood: Tesco Stores v Dundee City Council [2012] UKSC 13.
3. The Inspector had not treated the appeal site’s absence from the emerging Grantham Area Action Plan as a bar or practically insuperable hurdle. He had treated it as a material consideration, recognised by policy SP1, to be weighed alongside matters favouring permission. The Secretary of State was entitled to endorse that approach. The weight given to material planning considerations remained within the decision-maker’s jurisdiction: Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759.
4. Prematurity was properly understood. Permission could prejudice an emerging development plan by predetermining the location of development on the application site itself, where the site fell within the intended scope of the plan-making process. The relevant question was whether granting permission would prejudice decisions about the scale, location or phasing of development. Prematurity was one consideration among others, not an automatic bar.
5. The Secretary of State was required to address the main issues, not every material consideration. The absence of express reference to the later representations about funding for one road did not establish that the issue had been ignored. The decision letter had to be read straightforwardly, and an inference of failure to understand materiality was available only in limited circumstances: Bolton MDC v Secretary of State for Environment (1995) 71 P&CR 309; South Bucks DC v Porter (No. 2) [2004] UKHL 33.
6. Events occurring after the Secretary of State’s decision could not affect its lawfulness. The application was dismissed.

Not an appeal. The judgment concerns a statutory challenge to the Secretary of State’s planning appeal decision.