Mid Suffolk District Council v Secretary of State for Levelling Up, Housing and Communities & Anor

In a challenge under Town and Country Planning Act 1990 section 288, the court upheld an inspector’s planning judgment. A decision-maker must determine whether a proposal accords with the development plan as a whole, but section 38(6) does not prescribe a particular sequence or formula for weighing the plan against other material considerations. The tilted balance in paragraph 11 of the National Planning Policy Framework may properly inform whether material considerations justify deciding otherwise than in accordance with the development plan. Policies that are out of date may still carry significant weight. The weight given to an emerging plan and the choice of material considerations are ordinarily matters of planning judgment.

Mid Suffolk District Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision allowing Gladman Developments Ltd’s section 78 appeal against the Council’s non-determination of an outline application for up to 210 dwellings at Thurston, Suffolk.

The parties agreed that the proposal conflicted with the adopted development plan, including policies CS1, CS2 and H7, but disputed the weight to be given to that conflict, the emerging Joint Local Plan and the proposal’s benefits. The Council alleged inadequate reasoning, misinterpretation of Policy SP03, irrationality and an unlawful approach to section 38(6) of the Planning and Compulsory Purchase Act 2004. The central issues were whether the inspector had lawfully assessed the emerging policy and applied the statutory planning balance.

1. The claim was dismissed. The inspector’s decision was to be read flexibly and as a whole. The parties’ agreement that the proposal conflicted with Policy SP03 meant that this was not a principal controversial issue requiring express treatment in the decision letter. The conflict was implicit in the inspector’s reasoning on the weight to be given to the emerging plan.
2. The weight given to the emerging Joint Local Plan was a matter of planning judgment. The inspector was entitled to attach very limited weight because significant changes had been made after submission, the revised policy approach remained subject to consultation and examination, the outcome of the resumed hearings was unknown, and Part 2 remained embryonic. The factors in paragraph 48 of the NPPF did not dictate the result.
3. The inspector had not misinterpreted Policy SP03. His observation that most extant permissions contributing to the proposed housing requirement lay outside existing settlement boundaries was factually correct and relevant to weight. It did not treat permitted sites as conflicting with the policy.
4. The inspector lawfully applied section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990. The statute requires priority to be given to the development plan, while allowing other material considerations to justify a different determination, but prescribes no universal method of assessment. The paragraph 11 tilted balance was a relevant material consideration.
5. Policies considered out of date were not thereby deprived of all weight. Weight depended in part on their consistency with the NPPF, but the inspector had not adopted a binary rule that inconsistency meant no weight. His conclusion that the conflict with the key adopted policies deserved limited weight, despite the Council’s housing land supply, was lawful.
6. The inspector had adequately considered the housing land supply in Mid Suffolk and Thurston, the emerging plan and its evidence, and the benefits and harms of the proposal. The court would not re-examine planning merits or substitute its own view of weight.

First-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The court dismissed the challenge to the inspector’s decision allowing the section 78 appeal and granting outline planning permission.