Daventry District Council v Secretary of State for Communities And Local Government & Anor

Planning policies are not out-of-date merely because they pre-date the National Planning Policy Framework. Under paragraph 215, the decision-maker must assess the policy’s consistency with the Framework and then give it weight proportionate to that consistency. The housing-supply mechanism in paragraph 49 is distinct and does not replace that assessment. A planning inspector must also identify the weight actually given to the policy in sufficiently clear terms. A conclusion that a policy receives “reduced weight” is inadequate where the reader cannot determine the weight accorded. Failure to undertake that analysis may amount to an error of law in discharging the statutory duty to determine an application in accordance with the development plan.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal and granting outline permission for up to 121 dwellings at Weedon Bec. The proposed development conflicted with saved Local Plan policies restricting development in restricted-infill villages and the open countryside. The Secretary of State conceded that the decision should be quashed, but the developer resisted the claim.

The central issues were whether the inspector had properly applied the statutory development-plan duty, the relationship between paragraphs 47, 49 and 215 of the National Planning Policy Framework, and whether adequate reasons had been given.

1. The claim succeeded. The inspector’s decision was quashed by consent as against the Secretary of State.
2. Under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must determine the application in accordance with the development plan unless material considerations indicate otherwise. The Framework is a material consideration, but it is policy and does not displace the statutory development-plan presumption.
3. The inspector correctly recognised that the saved policies were part of the development plan and that the authority had a five-year housing land supply. However, he confused the mechanistic housing-supply question under paragraph 49 with the broader consistency assessment required by paragraph 215.
4. Paragraph 49 concerns whether policies for the supply of housing are automatically treated as out-of-date because the authority lacks a five-year supply. Paragraph 215 requires a separate and nuanced assessment of the extent to which each relevant saved policy is consistent with the Framework as a whole. That assessment includes policies concerning sustainable locations, existing settlements, open countryside, landscapes and brownfield land.
5. Age alone was not a sufficient reason to reduce the weight of the policies. The inspector should have considered whether the policies dated from their 1997 adoption, rather than the earlier Structure Plan, and the significance of their having been saved in 2007. He should then have explained the degree of inconsistency with the Framework and specified the weight accorded to each policy. “Reduced weight” was too vague because it did not identify the weight given.
6. The error was material. The inspector had therefore failed lawfully to discharge the statutory duty and misapplied the Framework. Ground 2, concerning reasons, did not require determination.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The inspector’s decision dated 12 June 2015 was quashed.