Thornhill Estates Ltd v Secretary of State for Communities and Local Government & Ors

A planning decision may be quashed where the decision-maker fails to understand or take into account a material change in planning policy. An interim policy permitting departures from a development plan policy does not, merely because it permits some departures, make the underlying development plan policy out-of-date. The interim policy may nevertheless be a material consideration where the inspector relied on non-compliance with it in balancing the planning considerations. A court will respect an inspector’s planning judgment on housing-land deliverability where the inspector has addressed the relevant test and given intelligible reasons.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s refusal of outline planning permission for about 400 dwellings in Leeds. The Secretary of State adopted the conclusions of a planning inspector who found that Leeds had a five-year housing-land supply, that the proposal conflicted with saved Policy N34 of the Leeds Unitary Development Plan, and that its adverse effects outweighed the housing benefits.

After the inquiry, Leeds City Council withdrew its PAS Interim Policy and progressed its Site Allocations Plan. The decision letter mistakenly treated Policy N34, rather than the Interim Policy, as having been withdrawn. The central issues were whether Policy N34 was out-of-date, whether the withdrawal of the Interim Policy was a material consideration which had to be addressed, and whether the inspector had lawfully assessed housing-land deliverability.

1. Ground A dismissed. Policy N34 was not rendered out-of-date for the purposes of paragraph 14 of the National Planning Policy Framework merely because the Council adopted an Interim Policy permitting some departures from it. The Interim Policy depended on the continued existence of N34. It provided a mechanism for limited departures under section 38(6), while N34 continued to designate protected land and prevent the release of less sustainable sites. The inspector gave adequate reasons for rejecting the claimant’s argument, and the Secretary of State was entitled to adopt those reasons.
2. Ground B allowed. The decision letter contained significant factual errors in stating that N34 had been withdrawn. In fact, N34 remained in force, the Interim Policy had been withdrawn, and the Council proposed to determine applications by reference to material considerations including the emerging Site Allocations Plan. The withdrawal removed the policy mechanism grafted onto N34. Since the inspector had given some weight to non-compliance with the Interim Policy in his balancing exercise, its withdrawal was capable of being a material consideration. The Secretary of State failed to understand or take it into account and gave no adequate reason for omitting it. The court could not supply the missing reasoning.
3. Grounds C–F dismissed. The inspector had applied the deliverability test in footnote 11 to paragraph 47 of the National Planning Policy Framework. His assessment of the Strategic Housing Land Availability Assessment, site viability, the evidence of developers, and expected build-out rates was a planning judgment supported by adequate reasons. He was not required to rehearse every submission or undertake a site-by-site reassessment where he explained why the Council’s assessment was the best basis for the calculation. The calculation properly proceeded by reference to the latest reliable evidence and did not have to anticipate future changes in the housing requirement or delivery.
4. The claim succeeded solely on Ground B. The Secretary of State’s decision was quashed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The challenged decision was the Secretary of State’s refusal of outline planning permission dated 10 March 2015.