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Developer loses Court of Appeal battle over refusal of 765-home schemes

A developer has lost on all four grounds in a legal challenge to Salford City Council and the Secretary of State for Housing, Communities and Local Government over their refusal to grant permission for a major scheme.

In Peel Investments (North) Ltd v Secretary of State for Housing, Communities And Local Government & Anor [2020] EWCA Civ 1175 the Court of Appeal rejected an attempt by Peel Investments (North) to reopen applications to build 600 homes at one site in west Salford and 165 on another.

Salford refused both applications and Peel’s appeals were dismissed by the Secretary of State.

Peel then brought a claim under s.288 of the Town and Country Planning Act 1990 to quash the Secretary of State's decision but this too was rejected by the Planning Court.

Baker LJ said the two issues now before the Court of Appeal were the correct interpretation of the term “out-of-date" in paragraph 11d of the National Planning Policy Framework and the proper application of policies in development plan documents which are time-expired and/or lack policy in respect of the strategic issue of housing supply.

The first ground of appeal was that the Planning Court erred in law in determining that a development plan document was not rendered ‘out-of-date’ simply by having exceeded its end-date.

Peel secondly submitted that a plan without strategic policies - in this case for housing supply - should be regarded as out-of-date for the purposes of paragraph 11d and the tilted balance, under which planning permissions for sustainable development are granted in most circumstances in the absence of such policies.

Its third ground was that the judge erred in law in concluding that the Secretary of State correctly interpreted paragraph 11d by reference to paragraph 213 of the NPPF.

Peel said the judge erroneously equated the task of identification of whether a policy was out-of-date as solely covered by an assessment of consistency under paragraph 213. As result, he incorrectly interpreted his role for the purposes of paragraph 11d as limited to carrying out an assessment of consistency.

The fourth ground of appeal was that the judge erred in basing his decision on the inspector's erroneous and inconsistent findings as to the impact of one policy on the provision of housing.

At appeal the Secretary of State argued that the NPPF is a statement of policy not a statutory text and should not be treated as though it were as it lacks the same status in the statutory scheme as the development plan.

Baker LJ said: “In my judgment, the arguments advanced on behalf of the Secretary of State and the council are plainly correct.

“There is nothing in paragraph 11d of the 2018 NPPF…to suggest that the expiry of the period of the plan automatically renders the policies in the plan out-of-date.”

On the second ground Baker LJ said; “I do not accept the appellant's submission that a plan without strategic housing policies is automatically out-of-date for the purposes of paragraph 11d so as to engage the tilted balance.”

He rejected the third ground saying the suggestion that the secretary of state approached the ‘out-of-date’ question “solely by reference to its consistency with the NPPF overlooks the fact that the inspector took into account…a wide range of factors, including those raised on behalf of the appellant”.

There was nothing inconsistent on the fourth ground in the inspector finding that the numbers of houses being built was exceeding the five-year supply whilst noting, and taking into consideration, deficiencies in the quality of the houses being constructed.

Baker LJ pointed to Lord Carnwath's judgment in Hopkins Homes that whether a policy becomes out-of-date and, if so, with what consequences were “matters of pure planning judgment, not dependent on issues of legal interpretation”.

Mark Smulian

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