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

When a development plan exists and its relevant policies are neither silent nor out of date, the decision-maker must determine whether the proposal accords with the plan. If it does not, the statutory priority of the plan must form the starting point for the planning balance under Planning and Compulsory Purchase Act 2004, section 38(6). The paragraph 14 route in the NPPF is then not engaged. The wider presumption in favour of sustainable development remains a material consideration, as does the objective of significantly boosting housing supply. An inspector’s decision letter should be read fairly and flexibly. Failure to use ideal wording does not establish an error of law where the substance of the correct approach is clear.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash a planning inspector’s decision allowing an appeal and granting outline permission for 32 dwellings outside the settlement boundary of Drakes Broughton. The inspector had found the proposal in conflict with Local Plan policy GD1, but concluded that the benefits of sustainable development outweighed that conflict. The Secretary of State conceded that the decision should be quashed, while the interested party resisted the claim. The issues were whether the inspector had given GD1 its proper statutory weight, applied the correct decision-taking framework, and used impermissible presumptions concerning sustainable development and housing supply.

1. The application was dismissed. The inspector had applied the correct legal approach and had taken account of all material considerations without relying on immaterial considerations.
2. Where a development plan exists, the decision-maker must ask whether it is absent, silent or whether relevant policies are out of date. If not, the decision-maker must determine whether the proposal accords with the plan. If it does not, the decision-maker must begin with the plan’s statutory priority and conduct the balancing exercise required by section 38(6) of the Planning and Compulsory Purchase Act 2004.
3. The paragraph 14 decision-taking route in the NPPF was not engaged because GD1 existed and its relevant policy was not out of date. That did not prevent the presumption in favour of sustainable development from operating elsewhere in the NPPF as an important material consideration. It was not confined to cases where the development plan was absent, silent or out of date.
4. The NPPF objective of significantly boosting housing supply, expressed in paragraph 47, applied to both plan-making and decision-taking. The inspector had treated it as a material consideration, not as a freestanding presumption.
5. The inspector had given GD1 full weight. His observations that the plan was not entirely consistent with the NPPF did not reduce that weight. A decision letter must be read straightforwardly and flexibly, particularly where it is addressed to an informed audience. Express reference to statutory priority would have been preferable, but the phrase full weight could only sensibly mean that the section 38(6) priority had been applied.
6. Any defects in wording were matters of form, not substance. In any event, applying the discretion principle in Europa Oil and Gas Ltd v SSCLG [2014] EWCA Civ. 825, the court would not have quashed the decision because the alleged errors could not have affected the result.