Hopkins Homes Ltd v Secretary of State for Communities And Local Government & Anor

Under paragraph 49 of the National Planning Policy Framework, a policy may be relevant to the supply of housing even though it is expressed as a general restriction on development. The question is whether the policy significantly affects the numbers, distribution or location of housing. It is not confined to policies dealing directly with housing numbers. The application of the policy remains a matter of planning judgment, but the policy must first be correctly interpreted. A planning inspector must also assess the significance of a non-designated heritage asset and the scale of any harm or loss in accordance with paragraph 135 and the NPPF glossary. Failure to do so is a legal error. Where an error may have affected the decision, it is unnecessary to prove that a different outcome would probably have followed.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing its section 78 planning appeal. The appeal concerned an application for 26 dwellings near Yoxford, Suffolk.

The inspector proceeded on the basis that the authority was unlikely to have a five-year housing land supply. He nevertheless treated policies SP19, SP27 and SP29 of the Suffolk Coastal Local Plan as up to date, treated the development as unacceptable in principle, and concluded that the proposal harmed historic parkland and was not sustainable. The issues were whether the inspector had misinterpreted paragraph 49 of the NPPF, misunderstood the physical limits boundary, and failed properly to apply paragraph 135 and the NPPF definition of significance.

1. The application succeeded and the inspector’s decision was quashed.
2. Paragraph 49 of the NPPF was misinterpreted. The phrase relevant policies for the supply of housing is not confined to policies dealing with housing numbers or distribution. General development policies may fall within it where they materially affect the location or supply of housing. Policy SP29 was comparable to the countryside policy considered in South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Land [2014] EWHC 573 (Admin), and the court adopted that analysis. The inspector’s contrary approach, based principally on William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin), was a fundamental misdirection.
3. The question whether a particular policy falls within paragraph 49 remains a matter for the inspector’s planning judgment after the correct legal scope has been identified. The court must not review the planning merits or the weight given to material considerations.
4. Applying Simplex G.E. (Holdings) v Secretary of State for the Environment and the City and District of St Albans District Council [1989] 57 P&CR 56, the court could not say that the inspector would necessarily have reached the same decision without the error. That was sufficient to quash the decision.
5. The inspector also mistakenly treated the physical limits boundary as having been defined in the recently adopted Local Plan. That error added little beyond ground 1. More importantly, he failed to assess the significance of the historic parkland in accordance with paragraph 135 of the NPPF and the Annex 2 definition, including the asset’s heritage interest and setting. The decision therefore contained a further legal error.

The application succeeded. The inspector’s decision was quashed.

The judgment concerns a section 288 challenge to an inspector’s decision on a section 78 planning appeal. The judgment does not state any prior court decision in the same proceedings.