Tewkesbury Borough Council v Secretary of State for Communities and Local Government & Ors

Localism did not fundamentally alter the established approach to determining planning applications. The Secretary of State retained responsibility for deciding appeals and was entitled to apply national policies requiring a five-year housing-land supply and recognising prematurity.

The absence of a five-year supply was an important material consideration, but it was not decisive. The decision-maker had to balance it against the development plan, emerging local plans, prematurity, environmental effects and other material considerations. The weight given to those matters was a matter of planning judgment. The court’s supervisory role was confined to legality and irrationality, not the planning merits.

Tewkesbury Borough Council challenged under Town and Country Planning Act 1990, section 288, the Secretary of State’s grant of planning permission on two appeals under section 78. The appeals concerned proposals for up to 1,000 dwellings at Bishop’s Cleeve, Gloucestershire.

An inspector recommended allowing both appeals. The Secretary of State adopted the inspector’s reasoning. The Council argued that the Localism Act 2011 and associated policy required substantially greater weight to be given to the Council’s emerging Joint Core Strategy and local democratic decision-making. The central issue was whether Localism had displaced the established planning principles concerning housing-land supply, prematurity and the Secretary of State’s appellate role.

1. The claims were dismissed. The Secretary of State’s decisions were lawful. The claimant was ordered to pay the Secretary of State’s costs, subject to the agreed set-off. The developer respondents were ordered to bear their own costs.
2. Under Town and Country Planning Act 1990, section 70(2), and Planning and Compulsory Purchase Act 2004, section 38(6), the development plan remained the starting point. Its weight depended on how up to date it was. Material considerations could justify a decision contrary to the plan.
3. The requirement for a five-year housing-land supply remained an important material consideration. Its absence triggered a presumption in favour of housing development under the applicable policy, but it was not a trump card. The decision-maker still had to balance all material considerations.
4. The prematurity principle remained applicable. Refusal was generally justified only where development would prejudice an emerging plan by pre-determining decisions about the scale, location or phasing of development. The emerging Joint Core Strategy was at an early stage, and the inspector was entitled to find that the appeals would not prejudice its preparation.
5. The Localism Act 2011 provided for the abolition of Regional Strategies and reduced the tiers of plan-making. It did not remove national planning policies, abolish the five-year housing-land-supply requirement, eliminate prematurity, or require the Secretary of State to defer to an authority without an adopted plan.
6. The court distinguished the legal question whether a matter was material from the planning judgment as to its weight. Applying Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, the court would intervene only for an error of law or irrationality. The inspector and Secretary of State had lawfully considered the emerging strategy, the outdated development plan, housing need, prematurity, landscape and sustainable development.

This was a first-instance judicial review under section 288 of the Town and Country Planning Act 1990. The judgment does not state any appellate history for this decision.