The defendant local planning authority published a draft local development plan. During the consultation exercise the claimants, freehold owners of a substantial landholding within the area of the local authority who were promoting various sites for residential and commercial development, objected to a number of draft policies in the plan, including an employment policy which restricted development in an area in which they owned sites to B1 uses. The claimants sought to have the policy amended to allow for B2 and B8 as well as B1 uses. The local authority considered making amendments and subsequently submitted the plan to the Secretary of State for statutory examination to consider whether it was sound within the meaning of the Planning and Compulsory Purchase Act 2004. The claimants submitted representations and took part in hearings held by the examining inspector. In the event, the plan was adopted as sound following the main modifications procedure. Prior to the adoption of the plan, the claimants had made a number of planning applications, including for B8 development in the area restricted to B1 uses in the draft local development plan. That application was refused. On appeal, the inspector appointed by the Secretary of State found, inter alia, that the presumption in favour of sustainable development in paragraph 14 of the National Planning Policy Framework (“NPPF”) did not apply to the applications, and upheld the decision to refuse permission. The claimants issued applications: (i) challenging the validity of the plan under section 113 of the 2004 Act, inter alia, on the ground that the inspector had failed to address an alleged under-allocation of land to meet the objectively assessed need for B8 development in compliance with the NPPF so that the plan should not have been treated as sound, a point not taken during the examination before the inspector; and (ii) pursuant to section 288 of the Town and County Planning Act 1990, challenging the decision to uphold the refusal of planning permission on the ground, inter alia, that the inspector had erred in failing to consider the wider presumption in favour of granting permission for sustainable operating outside paragraph 14 of the NPPF.
On the applications—
Held, applications dismissed. (1) It was very difficult to see why, in general, a factual or policy issue affecting the “soundness” of a plan should be allowed to be raised for the first time in a section challenge brought under section 113 of the Planning and Compulsory Purchase Act 2004, a fortiori when it could have been raised in the correct forum, the examination by the inspector, and there was either no justification for the failure to do so or not one sufficient to outweigh the disadvantages of allowing a new “soundness” point to be raised after the adoption of the plan. The process of preparing a local plan was costly and time-consuming not only for the local planning authority but also the many stakeholders and interests involved. In addition, the NPPF emphasised the importance in the public interest of having up to date local plans. The use of a section 113 challenge to pursue new points in that manner should firmly be resisted. It was plain beyond argument that the claimants could and should have raised their B8 shortfall point in their original objections to the plan and during the examination. No explanation had been put forward to justify their failure to do so. Their contention was dependent upon the factual and policy context and was obviously one where fact finding and the use of judgment by the inspector in the application of the NPPF would have been called for had it been raised. Those were therefore powerful reasons for not allowing it to be raised as a new point in the High Court. However, the point having been fully argued, the challenge fell to be dismissed on the merits in any event (paras 79–80, 88).
(2) The presumption in favour of sustainable development within the NPPF was contained solely within paragraph 14, which had to be read as a whole. Paragraph 14 was not simply an explanation of the effect of the presumption to which it referred, but also defined the circumstances in which the presumption in favour of sustainable development applied, both for the two limbs applicable to plan-making and the two limbs applicable to decision-taking. The reference to the “golden thread” was not indicative of a wider presumption of sustainable development but, rather, referred to the presumption in favour of sustainable development being a golden thread running through paragraph 14 and the plan-making and decision-taking functions set out therein. Paragraph 14 of the NPPF had been drafted to operate sensibly within the context of the statutory plan led regime and section 38(6) of the Planning and Compulsory Purchase Act 2004. Accordingly, the inspector, having found that the presumption in favour of sustainable development under paragraph 14 of the NPPF did not apply because the development plan policies were neither out of date nor silent in respect of the provision for B8 development, had not fallen into error in failing to apply any wider presumption under the NPPF and, there being no other basis for interfering with the inspector’s decision, the application under section 288 of the Town and Country Planning Act 2990 failed (paras 116, 118, 120, 126, 131, 135, 138, 148, 153, 154).
Jeremy Cahill QC and James Corbet Burcher (instructed by Clyde & Co LLP) for the claimant.
Richard Honey (instructed by Treasury Solicitor) for the Secretary of State.
Michael Bedford QC (instructed by Sharpe Pritchard) for the local planning authority.