Council loses Planning Court challenge over development and policies restricting development outside settlement limits

A borough council has failed to persuade the Planning Court that a planning inspector, when granting permission for a 55-dwelling scheme, erred in affording significant rather than full weight to the conflict between the proposed development and policies in the development plan restricting development outside settlement limits.

In Wokingham Borough Council v Secretary of State for Housing, Communities And Local Government & Anor [2019] EWHC 3158 (Admin) the planning inspector had granted planning permission for residential development on land at Parklands, east of Basingstoke Road, Spencers Wood, Wokingham.

The site is primarily an area of open pasture land which lies between the villages of Three Mile Cross and Spencers Wood. It adjoins the eastern frontage of Basingstoke Road.

The second defendant, Taylor Wimpey, applied for outline planning permission for up to 55 dwellings (with 35% affordable housing), together with all associated parking, landscape and access, and 1.56 ha of Suitable Alternative Natural Greenspace ("SANG").

The proposed development consisted of two areas of residential development, adjoining each village, with a SANG in between.

The claimant council submitted that:

1. The inspector failed to give adequate reasons for his conclusion.
2. If the inspector's reason for his conclusion was simply that the housing requirements in CP17 were out-of-date, he took into account an immaterial consideration and/or his conclusion was irrational.
3. The inspector failed to have regard to a material consideration, namely, whether or not the development limits were preventing the council from complying with national policy on the five year housing land supply.
4. The inspector acted unfairly in relying upon the fact that some of the sites in the council's five year housing land supply fell outside settlement boundaries, without requesting evidence and/or submissions on this matter from the council.

The Secretary of State for Housing, Communities and Local Government and the developer resisted Wokingham’s challenge, submitting that the weight to be accorded to the policies (CP9, CP11 and CC02), and the wider balancing exercise, were quintessentially matters of planning judgment for the inspector. There was no proper basis for interfering with the inspector's exercise of planning judgment in this case, they argued.

Mrs Justice Lang rejected Wokingham’s claim. She found that:

• The inspector's reasons for concluding that the conflict with policies CP9, CP11 and CCO2 should be afforded 'significant' rather than 'full weight' were “both intelligible and adequate, when read fairly, in the context of the decision as a whole”. In the decision, the inspector gave detailed consideration to the relevant policies, and the extent to which the proposed development would be in conflict with them.
• The inspector's reasons met the standards set out by Lord Brown in South Buckinghamshire District Council v Porter (No 2) and by Lord Carnwath in Dover DC v CPRE (Kent). “They explained his conclusions on the weight to be afforded to the policies, and I cannot accept that the Claimant did not understand his reasoning. I agree with Ms Lean's submission, on behalf of the First Defendant, that, in reality, the Claimant's complaint was that the Inspector's reasons were not rational.”
• In South Buckinghamshire District Council, Lord Brown had said that a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. “No such prejudice has been demonstrated in this case.”
• The inspector’s reasons were more extensive than Wokingham suggested, and they were based on a careful assessment by him, in accordance with the case law. “In my judgment, the fact that the development limits in the policies were derived from the out-of-date housing requirements in CP17 was clearly a relevant factor for the Inspector to take into account, and the Inspector's conclusion was a rational one which he was entitled to make.”
• The unsatisfactory way in which the parties conducted their respective cases placed the inspector “in a difficult position, as he was faced with conflicting evidence and submissions as to the number of sites outside development boundaries, in relation to the housing land supply, but he did not have sufficient evidence before him to make a detailed assessment”.
• She considered the inspector was “entitled simply to rely upon the unchallenged conclusions of the inspector in the recent Lambs Lane decision, at the same village (Spencers Wood), who ‘noted the use of land outside development limits in achieving the housing land supply and considered that this would reduce the weight to be given to those limits’, in support of his conclusion that part of the housing land supply of 6.83 years had been achieved by using land outside the development limits (DL53). The Inspector did the best he could in the circumstances in which he found himself, which were not of his making.”
• The inspector did not act unfairly. The council must have been aware that the extent to which development had occurred outside settlement limits was potentially relevant, not least because of the previous inspector's decision in Lambs Lane which was part of the evidence at the Inquiry. “The Claimant adduced evidence on this matter in its evidence in chief, and made submissions on it. The Claimant was given a fair opportunity to address this matter and chose not to do so in any detail. The Inspector acceded to the Claimant's submission that the table of evidence produced by the Second Defendant was to be excluded because the Claimant had not had an opportunity to respond to it. If the Claimant wished the Inspector to take an alternative course (e.g. adjourning the Inquiry to give the Claimant time to adduce further evidence), it could have requested the Inspector to do so.”

The claim was therefore dismissed. Mrs Justice Lang said that as a result, the question of whether or not to grant relief did not arise.