Basingstoke and Deane Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anor

The question whether a proposal accords with a development plan is not a purely linguistic exercise. The decision-maker must assess the plan as a whole, considering the relative importance of relevant policies, the extent of compliance or conflict, and the relationship between the proposal and the plan’s objectives.

The out-of-datedness of relevant policies may inform that assessment where it bears on the weight to be given to the policies and their capacity to achieve the plan’s objectives. The statutory presumption in favour of the development plan and the policy presumption in favour of sustainable development may be applied in a single comprehensive planning balance. The claim was dismissed because the Inspector’s approach disclosed no error of law and, alternatively, the outcome was inevitable.

Basingstoke and Deane Borough Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision allowing Bewley Homes plc’s appeal against refusal of planning permission.

The permission concerned a mixed-use development comprising up to 270 dwellings and associated facilities on agricultural land outside settlement boundaries. The Inspector found conflict with spatial and landscape policies, but treated the spatial strategy as out-of-date because it was failing to deliver the housing requirement for which it had been designed. He concluded that the proposal accorded with the development plan as a whole and that its benefits outweighed its harms.

The central issue was whether the Inspector had erred in taking account of the out-of-datedness of the spatial strategy when applying the first limb of section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. The claim was dismissed. The Inspector was entitled to conclude that the proposal accorded with the development plan as a whole.

2. Section 38(6) has two limbs. The first requires a determination to accord with the development plan unless material considerations indicate otherwise. The second requires a planning balance. Whether a proposal accords with the plan is a judgment about the plan read as a whole, not a purely linguistic comparison between the proposal and the words of individual policies.

3. Relevant considerations include the relative importance of policies, the extent of compliance or conflict, and the relationship between the proposal and the objectives or purposes of the policies and plan. The out-of-datedness of policies may be relevant where it bears on their weight or their ability to achieve the plan’s objectives.

4. The Inspector had lawfully found that the spatial strategy was out-of-date because it was not delivering the housing requirement that the plan was intended to deliver. The strategy was therefore fundamental to an objective of the plan, and its out-of-datedness could properly be considered when assessing the plan as a whole.

5. It was permissible to apply the statutory priority in section 38(6) and the presumption in favour of sustainable development in Policy SD1 and paragraph 11 of the NPPF in one balancing exercise. Ignoring the out-of-datedness of the spatial strategy would have been internally inconsistent with applying the development plan as a whole.

6. Alternatively, even if Policy SD1 were disregarded, the Inspector’s conclusion would stand. The identified conflicts and benefits had been lawfully assessed, and the Inspector had given only limited weight to conflict with the out-of-date spatial strategy. The court was satisfied that the same permission would inevitably have been granted under the second limb of section 38(6), applying Simplex GE (Holdings) Limited.