Wavendon Properties Ltdv Secretary of State of Housing Communities And Local Government & Anor

When applying the presumption in favour of sustainable development under paragraph 11(d) of the 2018 National Planning Policy Framework, the decision-maker must assess the policies most important to the application individually and then form an overall judgment on whether that group of policies is out-of-date. A single out-of-date policy does not automatically trigger the tilted balance.

Reasons for a planning decision must explain a pivotal and contentious conclusion sufficiently to show how the evidence and policy were treated. A decision-maker may use an approximate housing-land-supply figure, but must explain a new figure that departs materially from the evidence and the inspector’s conclusions.

The claimant challenged the Secretary of State’s dismissal of its appeal against refusal of outline planning permission for up to 203 dwellings at Woburn Sands. The appeal had been recovered for the Secretary of State’s determination after a public inquiry, at which the inspector recommended permission.

The Secretary of State disagreed with the inspector on housing-land supply, density and the planning balance. The claimant alleged errors in applying paragraph 11(d) of the Framework, assessing deliverability, giving reasons, applying policy H8, complying with rule 17(5) of the 2000 Rules, and treating a section 106 obligation as immaterial.

1. Grounds 2 and 3 allowed; decision quashed. The conclusion that estimated deliverable housing supply was roughly 10,000–10,500 dwellings was pivotal and contentious. The Secretary of State had adopted the inspector’s concerns about uncertainty, slippage and unrealistic delivery rates, while reaching a new figure not advanced by the parties or inspector. An assertion of the range, without explaining how the evidence and the inspector’s conclusions had been treated, did not satisfy the duty to give intelligible and adequate reasons.
2. Ground 1 failed. Paragraph 11(d) of the 2018 Framework requires the decision-maker to identify the policies most important to determining the application, examine each for being out-of-date, and then make an overall judgment on the policies taken as a whole. The tilted balance is not automatically engaged whenever one policy in that group is out-of-date.
3. Ground 4 failed. The Secretary of State lawfully treated policy H8 as consistent with paragraphs 122 and 123 of the Framework. He was entitled to give significant weight to the substantial departure from the policy’s numerical density requirement, while taking account of the prevailing character and appearance of the area.
4. Ground 5 failed. Rule 17(5) was not engaged. Whether sites were deliverable, how policy H8 applied, and whether policies were out-of-date were questions of planning judgment based on known facts.
5. Ground 6 was not arguable. The five-year build-out obligation did not address demonstrated planning harm or satisfy the necessity test. It therefore could not be treated as a material consideration under regulation 122 of the Community Infrastructure Levy Regulations 2010.

This was a statutory challenge in the Administrative Court under section 288 of the Town and Country Planning Act 1990 to the Secretary of State’s decision dismissing the claimant’s recovered planning appeal. The inspector had recommended that permission be granted, but the Secretary of State dismissed the appeal. The decision was quashed.