Gladman Developments Ltd v Secretary of State for Housing, Communities And Local Government & Anor

A decision-maker may apply an existing planning policy while a proposed amendment remains subject to consultation. Applying the existing policy is not unlawful merely because the proposed amendment would produce a different result.

Where a development requires appropriate assessment under the Habitats Directive, the presumption in favour of sustainable development, including the tilted balance, does not apply under paragraph 177 of the Framework. Mitigation cannot be used at the screening stage to avoid appropriate assessment. A housing land supply shortfall must ordinarily be assessed, but its weight remains a matter of planning judgment.

The claimant challenged the Secretary of State’s refusal of planning permission for up to 225 dwellings at Cliffe Woods, Kent. The Inspector had recommended allowing the planning appeal, partly because the Council lacked a five-year housing land supply and the tilted balance applied.

After People Over Wind and Sweetman v Coillte Teoranta [C-323/17], the Secretary of State carried out fresh screening and appropriate assessment. He concluded that the development would not adversely affect the integrity of a European site, but held that paragraph 177 of the Framework nevertheless disapplied the presumption in favour of sustainable development. The claimant raised five grounds concerning policy interpretation, consultation, appropriate assessment and housing land supply.

1. Grounds 1 and 2. Paragraph 177 of the 2018 Framework was clear and had to be read with paragraph 11. Where a proposal required appropriate assessment, the presumption in favour of sustainable development and the tilted balance did not apply. The Secretary of State was entitled to apply that policy even though he knew that its amendment was under consultation. Applying the proposed policy before consultation concluded would have pre-judged the consultation and was not required by the policy’s purpose.
2. A decision-maker may depart from a policy for good reason, but the Secretary of State rationally decided to apply the existing policy while the proposed amendment remained only a consultation proposal. He had regard to the Technical Consultation and was not required to apply it prematurely.
3. Ground 3. No further consultation was required. The claimant had been invited to make representations on the consequences of People Over Wind and Sweetman v Coillte Teoranta [C-323/17] and the application of the Framework. Those representations were considered, and the claimant suffered no material prejudice.
4. Ground 5. The Secretary of State had to assess the extent of the housing land shortfall, but the weight attached to that shortfall was a matter of planning judgment. He was entitled to conclude that the improvement from approximately 2.75–3 years to 3.9–4.3 years did not alter the significant or substantial weight given to the housing shortfall. The use of the 2016 household projections did not require a further reference back because it made no difference to the decision. Rule 17(5) did not apply because the assessment involved judgment rather than a disputed matter of fact.
5. Ground 4. The court refused a reference to the CJEU. People Over Wind and Sweetman v Coillte Teoranta [C-323/17] was clear and correctly decided. Mitigation measures must be disregarded at screening where the question is whether appropriate assessment is required. The domestic approach in R (Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) and Smyth v SSCLG [2015] EWCA Civ 174 could no longer be regarded as good law.
6. The claim under section 288 of the Town and Country Planning Act 1990 was dismissed.

The judgment concerns a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990 to the Secretary of State’s recovered appeal decision. The planning Inspector had recommended allowing the appeal, but the Secretary of State dismissed it.