Stratford On Avon District Council v Secretary of State for Communities and Local Government

In a planning appeal, the decision-maker may assess housing requirement and supply for the application before it. That assessment does not determine the housing requirement for the authority’s emerging development plan or bind later decision-makers considering different evidence. The weight given to material considerations, including an emerging plan, is a matter of planning judgment, subject to statutory provisions, policy guidance and rationality. Substantial potential prejudice to an emerging plan does not make refusal on prematurity grounds mandatory. The decision-maker must balance that prejudice against the need to determine applications promptly, having regard to the plan’s preparation stage, unresolved objections and consistency with the National Planning Policy Framework. The Aarhus Convention requires effective participation, but does not impose a blanket suspension of planning decisions while plan-making continues.

The Council applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision granting outline permission for up to 800 dwellings and associated development west of Shottery. The Secretary of State had recovered the developers’ appeal and adopted the Inspector’s recommendation.

The Council challenged the decision on two grounds. First, it argued that the Inspector had unlawfully determined a district-wide housing requirement of 11,000–12,000 dwellings for 2008–2028, rather than leaving that issue to the Council’s plan-making process. Secondly, it argued that the Inspector had failed to respect the Aarhus Convention and national guidance concerning public participation and prematurity in relation to the emerging Core Strategy.

1. Application dismissed. The Inspector and Secretary of State had committed no legal error.
2. The Inspector was required to assess housing requirement and supply in order to decide whether there was significant unmet housing need under the saved development plan policies and the National Planning Policy Framework. The assessment was made for the particular appeal, on the evidence then available. It did not bind the Council in preparing its Core Strategy, nor bind later decision-makers in other cases. The Inspector was entitled to reject the Council’s figure of 8,000 because it lacked adequate evidence of how displaced demand would be accommodated, and to prefer 11,000–12,000 on the available evidence.
3. The weight given to material considerations, including an emerging plan, is a matter of planning judgment. The Inspector addressed the economic, environmental and social considerations, the housing supply position and the evidence concerning tourism. His conclusions were not legally challengeable merely because the Council disputed their planning merits.
4. Substantial prejudice to an emerging plan does not require refusal on prematurity grounds. The Planning System General Principles and paragraph 216 of the NPPF required an evaluative balance, taking account of the emerging plan’s stage of preparation, unresolved objections and consistency with the NPPF. The Inspector considered each factor and was entitled to give the emerging Core Strategy relatively little weight.
5. The Aarhus Convention was not directly incorporated into domestic law, although its participation requirements were reflected in domestic legislation and policy. On the assumed basis that its obligations were engaged, it required effective public participation and due account to be taken of its outcome. It did not require all individual applications capable of affecting future policy to be suspended. Public participation had occurred in the development-plan and planning-application processes, including the inquiry and the prematurity issue.
6. The Secretary of State had effectively adopted the Inspector’s reasoning. The Council therefore failed to establish any ground for quashing the permission.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The Secretary of State had granted permission after recovering the developers’ planning appeal and adopting the Inspector’s recommendation. The High Court dismissed the Council’s application to quash that decision.