Peel Investments (North) Ltd v Secretary of State for Housing Communities And Local Government & Anor

A development-plan policy does not become out of date automatically when the plan period expires. The question is one of fact, or fact and judgment, assessed in the context of the Framework. Relevant considerations include whether the policy remains effective, consistent with national policy and has been overtaken by events.

A five-year housing land supply is assessed quantitatively by reference to deliverable housing units. Shortcomings in housing type, mix or tenure do not alter that calculation, but may carry material weight in the planning balance. Environmental protection policies may properly continue beyond the plan period where their objectives remain relevant.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision dated 12 November 2018 dismissing two appeals against Salford City Council’s refusal of planning permission for residential and associated development.

The Inspector found fundamental conflict with saved policies EN2 and R4 of the Salford Unitary Development Plan, concluded that policy EN2 was not out of date, and found that the Council had a qualifying five-year housing land supply, although it lacked an adequate qualitative supply of family and affordable housing. The Secretary of State adopted those conclusions. The central issues were whether the tilted balance in paragraph 11(d) of the 2018 Framework was engaged and whether the housing land supply requirement was qualitative as well as quantitative.

1. Claim dismissed. Grounds 1 to 5 failed. Permission was refused on grounds 6 to 8.
2. The expiry of a development plan’s stated period does not, by itself, make its policies out of date for paragraph 11(d) or paragraph 213 of the 2018 Framework. Whether a policy is out of date is a question of fact, or fact and judgment. The expiry date may be relevant, but is not dispositive. The Town and Country Planning (Local Planning) (England) Regulations 2012 do not convert that Framework concept into an automatic statutory consequence.
3. The Inspector was entitled to conclude that policy EN2 remained effective in protecting the Worsley Greenway, that its objectives remained relevant and consistent with the Framework, and that the absence of saved policies on housing need and distribution had not overtaken it. The decision-maker was entitled to treat those as planning judgments.
4. The Inspector and Secretary of State were entitled to rely on the Inspector’s analysis under the 2012 Framework when the parties had accepted that the relevant 2018 provisions materially mirrored it. The reasons, read fairly and as a whole, addressed consistency with the Framework and whether policy EN2 had been overtaken by events.
5. The five-year housing land supply requirement in paragraphs 47 and 49 of the 2012 Framework and paragraph 73 of the 2018 Framework is quantitative. It concerns the number of deliverable units. A deficient mix of housing types or tenure does not invalidate the calculation, although it is a material consideration in the planning balance and may attract significant weight.
6. The Secretary of State therefore lawfully gave substantial weight to the harm caused by conflict with policies EN2 and R4, while giving significant weight to the contribution towards family, aspirational and affordable housing, and concluded that the material considerations did not justify departing from the development plan.

The judgment describes an earlier decision on Appeal A as having been quashed by order of the High Court on 28 July 2016. The present statutory challenge to the Secretary of State’s decision of 12 November 2018 was dismissed.