Bovis Homes Ltd v Secretary of State for Communities & Local Government & Ors

Planning decisions do not engage the consistency principle merely because they concern nearby sites or similar policies. The earlier decision must present a materially relevant comparison; where the circumstances differ substantially, no separate reasoning distinguishing it is required.

Under paragraph 14 of the National Planning Policy Framework, the two routes for overcoming the presumption in favour of sustainable development are freestanding alternatives. An arguable error concerning one route does not justify quashing a decision supported independently by the other, unless the reasoning is shown to have affected that alternative conclusion.

The transport test in paragraph 32 requires assessment of severe residual cumulative impacts in their existing and future context. Circular 02/2013 does not impose a separate test.

The claimants sought permission to bring a statutory challenge under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s dismissal of an appeal concerning a proposed mixed-use development, including 650 dwellings at Leckhampton, Cheltenham.

The proposed grounds alleged inconsistency with earlier planning decisions, misapplication of paragraph 14 of the National Planning Policy Framework, and reliance on an inappropriate transport test derived from Circular 02/2013. A related natural justice complaint alleged that the parties had not had an opportunity to address the circular.

The issue was whether any of the proposed grounds were reasonably arguable.

1. Ground 2 — consistency principle. The principle identified in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137 was not arguably engaged. The Brockworth and Leckhampton decisions concerned materially different circumstances. The Examiner had treated the sites differently, and issues affecting the Leckhampton site, including landscape sensitivity and local green-space designation, did not arise in the same way at Brockworth. The Secretary of State therefore needed no separate reasoning distinguishing the earlier decision.
2. Ground 3 — paragraph 14 of the NPPF. The two limbs of paragraph 14 are freestanding alternatives. The Secretary of State correctly recognised that the presumption could be overcome either because specific policies indicated that development should be restricted or because adverse impacts significantly and demonstrably outweighed the benefits. Even if the reasoning on the first limb were arguably erroneous, paragraph 33 supplied an independent and untainted reason for refusal. The alleged error therefore could not make the decision arguably unlawful.
3. Ground 1 — transport. Paragraph 9 of Circular 02/2013 did not create a separate test. Its first part identified circumstances in which development would likely be acceptable, while its second part reflected the paragraph 32 test. The Inspector was entitled to consider existing and expected congestion when assessing residual cumulative impacts. The relevant question was not confined to the development’s incremental impact considered in isolation. The Secretary of State also correctly applied the severe residual cumulative impact test. The approach was not irrational within the principles stated in Tesco Stores v Dundee City Council [2012] PTSR 983.
4. The natural justice complaint had no independent force because the circular had not introduced a separate test. Permission to apply was refused.