Crane v Secretary of State for Communities and Local Government & Anor

Development plan policies must be construed objectively, sensibly and as a coherent whole. A neighbourhood plan’s housing allocations and limited windfall policy may together exclude substantial housing development on unallocated sites.

Where the authority lacks a five-year housing land supply, paragraphs 49 and 14 of the National Planning Policy Framework engage the presumption in favour of sustainable development. That presumption is rebuttable. Neither paragraph prescribes the weight due to out-of-date housing policies. The decision-maker must consider the Framework as a whole, including its neighbourhood-planning policies, and may give substantial weight to conflict with a recently adopted neighbourhood plan. The weight assigned to that conflict is a matter of planning judgment, reviewable only for irrationality.

The claimant sought an order under section 288 of the Town and Country Planning Act 1990 quashing the Secretary of State’s dismissal of his section 78 appeal. The proposed development comprised 111 dwellings and associated facilities on unallocated land at Broughton Astley.

The recently made neighbourhood plan allocated other sites for housing and permitted only limited windfall development. The Secretary of State nevertheless accepted that relevant housing-supply policies were out of date because the council lacked a five-year supply. He gave substantial weight to the additional housing but very substantial negative weight to conflict with the neighbourhood plan.

The court considered whether the Secretary of State had lawfully construed and applied the neighbourhood plan and the National Planning Policy Framework, whether his conclusions were rational, and whether his reasons were adequate.

1. The application was dismissed. The Secretary of State correctly found that the proposal conflicted with the neighbourhood plan and lawfully concluded that its adverse impacts significantly and demonstrably outweighed its housing-supply benefits.

2. Development plan policies are construed objectively according to their language and proper context. They are not interpreted as statutes or contracts. The plan must be read sensibly as a whole, with regard to its objectives, connected policies and, where necessary, supporting text: Tesco Stores Ltd v Dundee City Council [2012] P.T.S.R. 983, R (TW Logistics) v Tendring District Council (2013) 2 P. & C.R. 9 and R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567 applied.

3. Policies H1 and H3 formed a coherent housing strategy. H1’s selected allocations represented the acceptable location and planned maximum level of substantial new housing, while H3 allowed only modest windfall development. A proposal for 111 dwellings on an unallocated site therefore conflicted with the neighbourhood plan and the development plan as a whole. No additional breach of an environmental protection policy was required.

4. Paragraphs 49 and 14 of the National Planning Policy Framework establish a sequence. The decision-maker first determines whether housing-supply policies are out of date because a five-year supply cannot be demonstrated. If so, the paragraph 14 presumption applies, but permission may still be withheld where adverse impacts significantly and demonstrably outweigh the benefits or specific Framework policies restrict development.

5. Neither paragraph 49 nor paragraph 14 prescribes the weight due to out-of-date housing policies. Reduced weight will often be appropriate, but the amount depends on the circumstances. Paragraph 14 requires consideration of the Framework as a whole, including paragraphs 183–185 and 198 on neighbourhood planning. It does not require the development plan to be put aside or remove the presumption against development conflicting with a neighbourhood plan.

6. The Secretary of State was entitled to give very substantial negative weight to conflict with a neighbourhood plan made only three months earlier following consultation, examination and referendum. The allocation strategy sought to direct development to the best-located sites. The weight given to this conflict was a planning judgment within rational bounds, and the decision letter gave adequate and intelligible reasons.

• High Court (Administrative Court): The claimant’s application under section 288 of the Town and Country Planning Act 1990 was dismissed. The Secretary of State’s decision was upheld.
• Secretary of State: The claimant’s appeal under section 78 of the Town and Country Planning Act 1990 was dismissed, contrary to the inspector’s recommendation that planning permission be granted.
• Harborough District Council: The application for outline planning permission was refused.