District fails in challenge to decision of inspector to allow appeal by developer over non-determination of application

Mid Suffolk District Council has lost an attempt to persuade the High Court to overturn a planning inspector’s decision in favour of a developer over the non-determination of its application.

James Strachan KC, sitting as a deputy judge of the High Court, said in his judgment said there was “no substance” in a series of claims that alleged an unlawful approach was taken to a conflict with the development plan.

He also rejected a ground that inspector Stephen Wilkinson misinterpreted a policy in the emerging Babergh and Mid Suffolk Joint Local Plan or that in dealing with that emerging policy, he failed to take into account relevant factors, acted irrationally, or failed to provide adequate reasons.

Mid Suffolk made its claim under section 288(4A) of the Town and Country Planning Act 1990 after Mr Wilkinson allowed an appeal under section 78 of the Act by Gladman Developments against the council’s non-determination of its application for outline planning permission for up to 210 homes in Thurston

Gladman originally applied in May 2019 and the council later granted permission.

It did not issue that permission then because of an outstanding judicial review brought by Thurston Parish Council against planning consent for another housing development in Thurston.

The judicial review ended only when the Court of Appeal gave judgment in October 2022 in Thurston Parish Council  v Mid Suffolk District Council.

Mid Suffolk argued that in the intervening period the planning context changed, and so did its stance on Gladman’s development.

It argued before Mr Wilkinson that significant progress had been made towards adoption of a new local plan.

Mid Suffolk said that if Gladman’s appeal against non-determination had not been made, it would have refused the application as being outside Thurston’s defined settlement boundary, contrary to the core strategy and that the harm in allowing a significant number of further dwellings in the absence of any real need, contrary to the development plan, “significantly and demonstrably outweighs the benefits”.

The council also said it could now demonstrate 10.88 years' supply of housing land, almost double the amount when the application had been originally considered.

Mr Wilkinson had concluded: “ This is a finely balanced decision given the council's [housing land supply] position. Overall, I conclude that the benefits of the appeal scheme would significantly and demonstrably outweigh the harm identified when assessed against the policies of the development plan, when taken as a whole.

“As such the proposed development benefits from the [National Planning Policy] Framework’s presumption in favour of sustainable development.”

The Deputy High Court judge said: “I do not consider there to have been any legal error in the inspector's approach to Policy SP03, nor any inadequacy in his reasoning”.

He found Mr Wilkinson had been “lawfully entitled to prefer the position of [Gladman] on this issue [and] this was very much a matter of judgment for the inspector in the circumstances. He was lawfully entitled to reach that judgment for the reasons he set out [and] I do not consider there to be any irrationality in the inspector's conclusion.”

Mr Strachan dismissed a series of sub-grounds argued as ground 2 over an alleged unlawful approach to the conflict with the development plan.

He said: “On any fair reading of the inspector's decision taken as a whole, and in light of the common ground as to conflict with the development plan about which the inspector did not need to elaborate, I consider it is clear that the inspector was applying the approach set out in section 38(6) of the 2004 Act in his decision.

“The conflict with the development plan was uncontroversial, as was the consequential presumption that followed from that.

“But the inspector's reasoning understandably focused on the question of whether there were other material considerations indicated that the development should be determined otherwise. I do not detect anything unlawful in that focus, addressed as it was to the parties to the dispute.”

Mark Smulian