Malvern Hills District Council v Secretary of State for Communities and Local Government & Anor

Saved local-plan policies remain part of the development plan even when housing policies are out of date because the local planning authority cannot demonstrate a five-year housing-land supply. Their weight may be reduced, but they remain material considerations which the decision-maker must take into account under Planning and Compulsory Purchase Act 2004, section 38(6).

A planning inspector must decide whether the proposed development accords with the relevant policies and give intelligible and adequate reasons for that conclusion. A finding of compliance cannot be asserted without explanation, particularly where no party has advanced a case that the development complies. Failure to do so is a material error of law warranting the quashing of the decision.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing the Developer’s section 78 appeal and granting permission for six dwellings in open countryside.

The Inspector treated the saved policies of the Malvern Hills District Local Plan 1996-2011 as out of date because the Council could not demonstrate a five-year housing-land supply. She nevertheless concluded that the development complied with Policies DS1, DS12 and DS14 and was sustainable under the National Planning Policy Framework. The Secretary of State conceded that the Inspector had failed to give adequate reasons for that conclusion. The central issues were whether the Inspector had lawfully interpreted and applied the local-plan policies and whether her reasons were adequate.

1. Application granted; decision quashed. The Inspector’s decision dated 17 February 2015 allowing the section 78 appeal and granting planning permission was quashed. The appeal was remitted to the Secretary of State for redetermination.
2. The saved Policies DS1, DS12 and DS14 formed part of the development plan. Their adoption before the National Planning Policy Framework meant that paragraph 215 required the weight given to them to reflect their consistency with the Framework. The absence of a demonstrable five-year housing-land supply made the housing policies out of date, but did not make them irrelevant. They remained material considerations which the Inspector had to take into account.
3. The presumption in favour of sustainable development under paragraphs 14 and 47–49 of the Framework affected the weight and operation of the local policies. It did not remove the statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application in accordance with the development plan unless material considerations indicated otherwise.
4. Having taken the policies into account, the Inspector had to consider whether the development was consistent or in conflict with them. Her assertion that the proposal complied with DS1, DS12 and DS14 required an explanation. Neither the Council nor the Developer had advanced a case that the proposal complied with those locational policies, and the decision letter did not explain the basis of the asserted compliance.
5. The weight to be given to the policies was a matter of planning judgment. However, it could not be assumed that proper consideration of compliance would inevitably have produced the same result. The failure to give adequate reasons was therefore a material error in the Inspector’s approach and an error of law. Ground 3, concerning paragraph 55 of the Framework, did not require determination.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The challenged decision was an Inspector’s decision dated 17 February 2015 allowing the Developer’s section 78 appeal and granting planning permission. The High Court quashed that decision and remitted the appeal to the Secretary of State for redetermination.