William Davis Ltd & Anor v Secretary of State for Communities and Local Governments & Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality rather than planning merits. The presumption in favour of sustainable development in paragraph 14 of the NPPF applies only after the proposal has been found to constitute sustainable development. Whether a development is sustainable, the weight given to material considerations, and the reconciliation of competing planning policies are matters of planning judgment. A policy restricting development is not a relevant policy for the supply of housing merely because it may constrain housing delivery. Prematurity may lawfully count against permission where the scale of the proposal would prejudice an emerging development plan. Reasons are adequate if, read fairly and straightforwardly, they explain the principal controversial issues and disclose no substantial doubt about legal error.

The claimants challenged the Secretary of State’s decision dated 20 August 2012, which dismissed their section 78 appeal and refused outline planning permission for a residential development of about 1,400 dwellings in the Coalville-Whitwick-Swannington Green Wedge.

The challenge under section 288 of the Town and Country Planning Act 1990 alleged misinterpretation of the NPPF, inconsistency with earlier planning decisions, unlawful reliance on prematurity, errors concerning air quality, and inadequate reasons. The central issues were whether the development was sustainable, whether saved Green Wedge Policy E20 was out of date or a housing-supply policy, whether the emerging Core Strategy justified prematurity, and whether air-quality impacts and proposed mitigation had been lawfully assessed.

1. Claim dismissed. The Secretary of State’s decision was lawful.
2. Paragraph 14 of the NPPF applies to development which has first been found to be sustainable development. The Inspector and Secretary of State were entitled to conclude that the proposal was not sustainable development, having regard to the loss of the Green Wedge, adverse effects on the Air Quality Management Area and loss of about 25 hectares of best and most versatile agricultural land. That conclusion involved planning judgment and was not susceptible to challenge merely because the claimants disagreed with it.
3. Saved Policy E20 remained relevant and was not out of date. It protected the separation and identity of settlements and did not relate to the supply of housing for the purposes of paragraph 49 of the NPPF. The policy’s restrictive effect did not prevent the decision-maker from weighing the benefits of additional housing against the policy conflict and other material considerations.
4. The court applied the approach in Tesco Stores Ltd v Dundee City Council that planning policies are interpreted objectively in context, while their application and reconciliation involve planning judgment. The Inspector and Secretary of State were entitled to treat the emerging Area of Separation policy as substantially continuing the Green Wedge policy’s function.
5. Prematurity was a matter of planning judgment and policy. The proposal’s scale could prejudice the emerging Core Strategy by predetermining its housing-location strategy. Giving that emerging strategy limited weight was consistent with treating prematurity as a factor against permission but not determinative.
6. The Inspector and Secretary of State were entitled to adopt a precautionary approach to the likely worsening of air quality. The proposed condition lacked sufficient precision, and the Inspector was not required to devise a different condition. The reasons, read fairly and in context, adequately explained the decision and caused no substantial prejudice.