Wynn-Williams, R (on the application of) v Secretary of State for Communities and Local Government

Under the National Planning Policy Framework, the presumption in favour of sustainable development does not automatically displace an applicable development-plan policy. The decision-maker must first identify the relevant policies, determine whether they are out of date by reference to their consistency with the Framework, and then apply the consequences prescribed by paragraph 14. A policy is not out of date merely because it predates the Framework. The precise method of decision-making is for the planning judgment of the decision-maker, provided the relevant policies and material considerations are understood and addressed. A fallback proposal is a fact-sensitive material consideration. Its significance depends on the real prospect of implementation and its comparative planning effects. No mechanistic or universally applicable probability test is required.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of his appeal against refusal of permission for a tennis court on land outside a settlement boundary. The Inspector considered that the proposal would harm the character and appearance of the countryside and conflict with saved local-plan policies GEN 1, RUR 2 and RUR 3.

The claimant argued that the Inspector had applied an outdated development-plan presumption instead of the presumption in paragraph 14 of the Framework, and had inadequately assessed the permitted equestrian manège as a fallback position. The court considered the proper relationship between development-plan policies, the Framework and the fallback argument.

1. Ground 1 failed. The Framework is a material consideration within sections 70(2) and 38(6), but it is not part of the statutory Development Plan. Paragraph 14 does not create an automatic presumption in favour of development. The decision-maker must first ask whether relevant development-plan policies exist and, if so, whether they are out of date or inconsistent with the Framework.

2. The mere age of a policy does not make it out of date. Paragraphs 211 and 215 require attention to the policy’s substance and consistency with the Framework. The relevant local-plan policies were applicable and consistent with the Framework. The Inspector therefore lawfully applied them and considered the Framework, including the balance between the proposal’s benefits and its environmental harm.

3. The court should not impose a universal prescription on the decision-maker’s method. Judicial intervention is justified where the decision-maker misunderstands policy, acts outside the statutory power, or fails to consider material matters. The Inspector had understood the applicable policies and addressed the relevant Framework considerations.

4. Ground 2 failed. The significance of a fallback position is a broad, fact-sensitive planning judgment. A possibility may suffice to establish a real prospect, but the weight given to the fallback depends on the circumstances and the evidence. The two-stage analysis identified in Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin) is helpful but not prescriptive.

5. The Inspector lawfully concluded that the tennis court would be more harmful to the countryside than the manège and that there was no substantive evidence supporting its likely implementation. The reasons were adequate even though the Inspector addressed the two aspects of the fallback analysis in a different order. The application was dismissed, with costs assessed and agreed at £5,484.

Not an appeal. The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to the Inspector’s decision dismissing his section 78 appeal.