Reigate And Banstead Borough Council v Secretary of State for Communities And Local Government & Anor

The statutory priority given to the development plan is not displaced by a general presumption in favour of sustainable development. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a proposal conflicting with an up-to-date development plan must be refused unless material considerations indicate otherwise.

The presumption in the National Planning Policy Framework arises only in the circumstances defined by paragraph 14. A decision-maker must not assess sustainability as a free-standing issue or treat the delivery of additional housing as sufficient reason to depart from the plan. The decision-maker must apply the development plan, identify the material considerations, and decide whether they justify departure.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of permission for up to 46 dwellings and associated access in Horley, Surrey.

The development conflicted with the adopted Core Strategy’s policy of prioritising housing within existing urban areas and releasing sustainable urban extensions only when necessary to maintain a five-year housing land supply. The Inspector found that the proposal was sustainable development, would reduce the housing shortfall and would not prejudice the urban-first strategy. The Secretary of State conceded that the Inspector had erred in law. The central issue was whether the Inspector had lawfully applied the statutory development-plan presumption and the NPPF.

1. The application under section 288 of the Town and Country Planning Act 1990 was granted and the Inspector’s decision was quashed.

2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives the development plan priority. The decision-maker must identify and properly interpret the relevant policies, determine whether the proposal accords with the plan, identify the other material considerations, and assess whether they indicate that the plan should not be followed. The weight given to those considerations is for the decision-maker, subject to review for irrationality or legal error.

3. The NPPF is a material consideration but is policy, not statute. It does not displace the statutory presumption in favour of the development plan. The presumption in favour of sustainable development in NPPF 14 is confined to the circumstances specified there and does not create a general presumption that any development increasing housing supply should be permitted.

4. Where an up-to-date development plan conflicts with a proposal, the proposal cannot be treated as sustainable development merely because it would deliver additional housing without identified material harm. The decision-maker must follow the route prescribed by NPPF 11 to 15. A free-standing overall assessment of sustainability outside that framework is unlawful.

5. The Inspector accepted that the proposal conflicted with Policies CS6 and CS13 and that the Council had, or was very close to, a five-year supply against the adopted requirement. Nevertheless, he treated sustainability and additional housing as effectively determinative and failed to apply section 38(6), thereby reversing the statutory presumption. These were substantive errors, not technical defects, and it could not be concluded that the same decision would have been reached lawfully.

6. The expertise of planning Inspectors and the limited scope of merits review did not prevent intervention where the Inspector adopted an approach inconsistent with the statute and the NPPF.