Raising the bar

Planning Advisory Service
Spring Conference, Birmingham
Presented By
Jack Smyth & James Corbet Burcher,
Barristers, No5 Chambers

Spring Conference
Cultural Heritage
Presented By
Jack Smyth

The Statutory Duty to have regard to the desirability of preserving the
listed building and its setting and the character or appearance of the
conservation area. The Framework provides:
Para 133
Where a proposed development will lead to substantial harm to or total
loss
of significance of a designated heritage asset, (LPAs)…should refuse
consent, unless it can be demonstrated that the substantial harm or loss
is necessary to achieve substantial public benefits that outweigh that
harm or loss, or all of the following apply:
nature of the heritage asset prevents all reasonable uses of the site;
no viable use of the asset … can be found in the medium term through
appropriate marketing that will enable its conservation;
conservation by grant-funding or…charitable or public ownership is
demonstrably not possible;
harm/loss is outweighed by the benefit of bringing site back into use.
3

Para 134
Where a development proposal will lead to less than
substantial harm to the significance of a designated
heritage asset, this harm should be weighed against the
public benefits of the proposal, including securing its
optimum viable use.
4

“In considering whether to grant planning permission for
development which affects a listed building or its setting,
the local planning authority or, as the case may be, the
Secretary of State shall have special regard to the
desirability of preserving the building or its setting or any
features of special architectural or historic interest which
it possesses.”

Section 72(1) provides:

“In the exercise, with respect to any buildings or other
land in a conservation area, special attention shall be paid
to the desirability of preserving or enhancing the character
or appearance of that area.”
5

BARNWELL MANOR WIND ENERGY LTD v (1) EAST
NORTHAMPTONSHIRE DISTRICT COUNCIL ET AL
[2014] EWCA Civ 137
6

In enacting the statutory duty Parliament had intended that the
desirability of preserving the settings of listed buildings should
not simply be given careful consideration by the decision-maker
for the purpose of deciding whether there would be some harm,
but should be given "considerable importance and weight" when
the decision-maker carried out the balancing exercise

It was erroneous of the Inspector to have treated the less than
substantial harm to the setting of the listed buildings as a less
than substantial objection to the grant of planning permission.

While he had set out the s66 duty in his decision, at no stage
did he expressly acknowledge the need to give considerable
weight to the desirability of preserving the setting of those
buildings.
7

R (on the application of (1) FORGE FIELD
SOCIETY ET AL [2014] EWHC 1895 (Admin)
8

Having "special regard" or paying "special attention" involved
more than merely giving weight to those matters in the planning
balance.
There was a strong statutory presumption against granting
planning permission for any development which would fail to
preserve a listed building's setting or a conservation area's
character or appearance.
A local authority was not allowed to treat the desirability of
preserving those elements as mere material considerations to
which it could simply attach such weight as it saw fit; when a
local authority found that a proposed development would harm
a listed building's setting or a conservation area's character and
appearance, it had to give that harm considerable importance
and weight
9

Alternative Sites
A local planning authority does not normally need to take
into account alternative sites for the development it is
considering. Where, however, there are clear planning
benefits associated with the development but also clear
objections to it, the authority may have to consider
whether there is a more appropriate site for it (at para 84)
The local authority should have considered alternative
sites because there were clear objections to the proposed
development. This was common ground. The assessment
of alternative sites had been deficient.
10

R (on the application of SILUS INVESTMENTS
S.A.) v HOUNSLOW LONDON BOROUGH COUNCIL
[2015] EWHC 358 (Admin)

Procedure for the designation of Conservation Areas
11

 Pursuant to s.69 of the Act, the local authority had a duty to
designate any area which it considered met the statutory test,
and a duty to consider from time to time whether any areas met
that test. No procedure was specified and there was no statutory
obligation to consult.
 The question on any designation decision was whether the area
met the statutory criteria, and the court would strike down a
designation decision whose sole impetus was a desire to prevent
the demolition of a particular building
 While such a desire could not of itself justify designation, the
existence of a particular building might contribute to the
character of an area, and a threat of demolition might
legitimately prompt a decision to designate
 There was credible evidence that the local authority had been
considering designating Chiswick High Road for some years.
Designation had not happened because other areas had been
prioritised, not because the area was unsuitable.
12

 In 2014 the LA had been spurred into action by the proposed
demolition. It was apparent from the report recommending
designation that the risk to the pub was not the reason for the
designation, although it was acknowledged as a benefit. The report set
out the statutory test and applied the criteria to the area as a whole,
and it was clear that the local authority had not designated the area
simply to prevent the pub's demolition
 The local authority conceded that by representing on its website that
there would be a consultation it had created a legitimate expectation.
 Where a public body embarked on a consultation without being
obliged to do so, it still had to comply with the minimum standards of
a lawful consultation procedure. That had not happened:
a) The information given to consultees was too superficial to provide
for a meaningful consultation;
b) the seven-day consultation period was too short;
c) the decision to curtail it by five days was unjustified; and
d) not all the responses had been taken into account
e) The designation was quashed.
13

Planning Advisory Service Spring
Conference
Humpty Dumpty & Up-to-Date “Out of Date”
Policies for the Supply of Housing
Presented by
James Corbet Burcher

OVERVIEW
 Interpretation of Planning Policy: Tesco Stores
Ltd v Dundee City Council, ‘Humpty Dumpty’ and
Hunston
 (1) Out of Date Policies: Crane
 (2) Localism: Tewkesbury, Stratford
 (3) OAN/Delivery: Hunston Properties, South
Northamptonshire, Gallagher v Solihull
 (4) Soundness: Grand Union Investments
 (5) Presumption: William Davis, Dartford
 Policy Reform? Putting Humpty Back Together
Again

THE LOOKING-GLASS WORLD
"When I use a word," Humpty Dumpty said, in
rather a scornful tone, "it means just what I
choose it to mean—neither more nor less.“
"The question is," said Alice, "whether you can
make words mean so many different things.“
"The question is," said Humpty Dumpty, "which
is to be master—that's all."

Tesco Stores v Dundee City Council
[2013] UKSC 13
“[19]… Nevertheless,
planning authorities
do not live in the
world of Humpty
Dumpty: they cannot
make the
development plan
mean whatever they
would like it to
mean”
St Albans v Hunston
Properties Limited and
SSCLG [2013] EWCA
Civ 1610, [4]
17

Who Should Decide the Meaning of
Planning Policy?
Decision-Makers?
Officers
Committee Members
Statutory Consultees
Inspectors
Secretary of State
Or the Courts?
If the latter, what
opportunities does this
create for all parties?
18

Tesco v Dundee: Interpretation as a
Matter of Law
Commercial retail JR turning on the interpretation of one
component of the sequential test: “suitable”
[17]: The fundamental importance of a proper
understanding of the development plan, given its statutory
status (S70(2) TCPA 1990 and S38(6) PCPA)
[18]:Development plan “carefully drafted and considered
statement of policy” and “published in order to inform the
public… “Policy statements should be interpreted
objectively in accordance with the language used, read as
always in its proper context”

Tesco v Dundee: Planning Judgment
 [19]: However where “mutually irreconcilable” one provision
may give way to another AND “many of the provisions of
development plans are framed in language whose
application to a given set of facts requires judgment”
 [22]: “Where it is concluded that the proposal is not in
accordance with the development plan, it is necessary to
understand the nature and extent of departure from the
plan which the grant of consent would involve in order to
consider on a proper basis whether such a departure is
justified by other material considerations”
 [35]: “The meaning to be given to the crucial phrase is not
a matter that can be left to the judgment of the planning
authority”

St Albans v Hunston Properties Limited
and SSCLG [2013] EWCA Civ 1610
 “[4] [Tesco v Dundee] was concerned with policy in a
statutory development plan, but it would seem
difficult to distinguish between such a policy
statement and one contained in non-statutory
national policy guidance. I accept, therefore, as do
the parties to this appeal, that it is for this court to seek
to arrive at the appropriate meaning of paragraph 47 of
the Framework.”
21

The Planning Court (2014-present)
 Planning Court
 Commenced 7 April 2014
 R(Jones) v English Heritage (Battle of Fulford case)
 First stage of a major transformation
 Fast-tracked cases
 Frontloaded preparation
 Specialist judges
 Focussed hearings
 The development of a consistent body of Planning
Court case law
22

1) Crane v SSCLG and Up to Date “Out of
Date” Policy

Paragraph 14: “Out of Date”
 Crane v SSCLG [2015] EWHC 425 (Admin)
 Hearing: December 2014 – 23 February 2015
 Section 288 Challenge
 Local Plan/Core Strategy: 2011
 No five year housing supply
 Broughton Astley Neighbourhood Plan made
 Housing supply policies
 Allocation policies for Core Strategy target + 100 houses
 On appeal: Inspector recommended grant
 Secretary of State: “very substantial negative weight”
24

 "23. The Secretary of State considers that the lack of a 5 year
housing land supply and the contribution that the appeal
proposal would make to increasing supply weighs
substantively in favour of the appeal.
24. He considers that the harm and conflict with the
Harborough Core Strategy in relation to landscape character
and the appearance of the area are nowhere near sufficient to
outweigh the benefits of the proposal in terms of housing
supply.
25

 25. However, in view of [the NPPF] policy that neighbourhood
plans will be able to shape and direct sustainable
development, he places very substantial negative weight on
the conflict with the Neighbourhood Plan even though this
is currently out of date in terms of housing land supply
ahead of its review in 2018.
 26. The Secretary of State considers that the adverse impacts of
the appeal proposal, especially in terms of the conflict with the
Broughton Astley Neighbourhood Plan, would significantly
and demonstrably outweigh the benefits in terms of
increasing housing supply. He therefore concludes that there
are no material circumstances that indicate the proposal
should be determined other than in accordance with the
development plan."
26

 [58] “As the court has held, out of date policies of
this kind are likely to command little weight (see, for
example, the judgment of Males J. in Tewkesbury
Borough Council v Secretary of State for Communities and
Local Government [2013] EWHC 286 (Admin), at
paragraphs 13 and 20, and observations made by the
court in several other cases – William Davis Ltd. v
Secretary of State for Communities and Local Government
[2013] EWHC 3058 (Admin) (at paragraph 33), Cotswold
District Council v Secretary of State for Communities and
Local Government [2013] EWHC 3719 (Admin) (at
paragraph 72), South Northamptonshire Council v
Secretary of State for Communities and Local Government
[2014] EWHC 573 (Admin) (at paragraphs 38 to 47), and
Grand Union Investments Ltd. v Dacorum Borough Council
[2014] EWHC 1894 (Admin) (at paragraph 78)).
27

 [71]: As I have said, Mr Hill points, for example, to an
expression used by Males J. in paragraph 20 of his
judgment in Tewkesbury Borough Council – “little
weight” – when referring to “relevant policies” that are
“out of date”. In Grand Union Investments Ltd. (at
paragraph 78) I endorsed a concession made by counsel
for the defendant local planning authority that the
weight to be given to the “policies for housing
development” in its core strategy would, in the
circumstances of that case, be “greatly reduced” by the
absence of a five-year supply of housing land.
28

 [71]: “[N]either paragraph 49 of the NPPF nor
paragraph 14 prescribes the weight to be given to
policies in a plan which are out of date. Neither of
those paragraphs of the NPPF says that a development
plan whose policies for the supply of housing are out of
date should be given no weight, or minimal weight,
or, indeed, any specific amount of weight. One can of
course infer from paragraph 49 of the NPPF that in the
Government’s view the weight to be given to out of date
policies “for the supply of housing” will normally be
less, often considerably less, than the weight due to
policies which provide fully for the requisite supply.
29

 [71]: However, the weight to be given to such policies
is not dictated by government policy in the NPPF.
Nor is it, or could it be, fixed in the case law of the
Planning Court.
 It will vary according to the circumstances,
including, for example, the extent to which the
policies actually fall short of providing for the
required five-year supply, and the prospect of
development soon coming forward to make up the
shortfall.
30

Summary
Weight is always a matter for the decision maker
Provided that they interpret the policy correctly
The wording “out of date“ has been considered in a
number of High Court cases
Less weight, often considerably less
However the weight to be given to conflict is “not dictated
[by NPPF]” or “fixed in the case law”
It will vary according to the circumstances, including,
for example, the extent to which the policies actually
fall short of providing for the required five-year supply,
and the prospect of development soon coming forward
to make up the shortfall.
31

(2) The Localism Challenges
 Tewkesbury BC v SSCLG [2013] EWHC 286 (Admin)
 Stratford on Avon DC v SSCLG [2013] EWHC 2074
(Admin)
 Re-affirmation of conventional planning principles
 Localism Act’s key reform to remove RSS not to remove
scope for SSCLG to accord significant weight to lack of
5YHLS
 Tewkesbury: [13] “A plan which is based on outdated
information or which has expired without being
replaced, is likely to command relatively little
weight”
 [20] Disjuncture with PPS3: from “favourable
consideration” to “rebuttable presumption in favour of
grant” [21] Reserved judgment on importance of “to
boost significantly”
33

Localism [cotd]
 Tewkesbury, [29] “Existing plan so far out of date”
that “PFSD in favour of existing development plan is
very easily rebutted”
 [49] Provisional conclusion: “entirely unexceptional
application of legal and policy principles”
 [62] The context for NPPF [17] “genuinely plan-led” =
[14]+[47]+[49]+[214]+[216]+[150]+[196] “a coherent
whole”
 [64]“They demonstrate that, for the future,
development plans prepared by local planning
authorities in accordance with the national policy
principles set out in the NPPF, including the
provision of a five year housing land supply, will
represent the starting point for consideration of
planning applications, and that it may well be difficult
to obtain permission for developments which are not in
accordance with such plans.”
34

Localism [cotd]
 Tewkesbury, [64]: “However, they do not suggest that
greater weight should be accorded to the views of
local authorities who do not have such a
development plan (or during the one year transitional
period, a development plan produced in accordance with
the PCPA 2004) over and above whatever weight would
be appropriate pursuant to the long established
prematurity principle.”
 [65] “…this greater say over such matters will depend
upon the expeditious preparation of local plans
which make provision (including in particular a five
year supply of housing land) for the future needs of
those areas”
35

Localism [cotd]
 Stratford on Avon District Council v SSCLG [2013]
EWHC 2074 (Admin)
 Echoes Tewkesbury but challenge differently based, by
reference to plan situation and Aarhus Convention
 [37] Extent to which Inspector was permitted to
determine housing requirement at time when plan
under preparation: straightforward application of [47]-
[49]
 [62] “There is a tension between two policy
requirements: the need for the planning system not
to be unduly inhibited by uncertainty as to future
policy, and the need for planning decisions on
individual planning applications not unduly to
prejudice or pre-emept future development plans.”
36

3) OBJECTIVELY ASSESSED NEED/
“SIGNIFICANTLY BOOST THE SUPPLY”
37

(3a) NPPF 47: Objectively Assessed Need
 Hunston [2013] EWCA Civ 1610
 [22]… “the inspector found that there was no shortfall in the
supply because she regarded it as necessary to identify a
housing requirement figure which reflected the constraints on
built development in the district generally which resulted from
the extensive areas of Green Belt there. The best she felt she
could do was to adopt the earlier East of England Plan
figure which, though in a revoked plan, sought to take
account of such constraints. Was she entitled to do so?”
 [25] I am not persuaded that the inspector was entitled to use
a housing requirement figure derived from a revoked plan,
even as a proxy for what the local plan process may produce
eventually. The words in paragraph 47(1), "as far as is
consistent with the policies set out in this Framework"
remind one that the Framework is to be read as a whole,…
38

NPPF 47 [cotd]
 [22] “but their specific role in that sub-paragraph seems
to me to be related to the approach to be adopted in
producing the Local Plan. If one looks at what is said in
that sub-paragraph, it is advising local planning
authorities: "to ensure that their Local Plan meets the
full, objectively assessed needs for market and
affordable housing in the housing market area, as far as
is consistent with the policies set out in this
Framework.“
That qualification contained in the last clause quoted
is not qualifying housing needs. It is qualifying the
extent to which the Local Plan should go to meet
those needs. The needs assessment, objectively arrived
at, is not affected in advance of the production of the
Local Plan, which will then set the requirement figure.”
39

NPPF 47 [cotd]
 [27] “…the inspector erred by adopting such a
constrained figure for housing need. It led her to find
that there was no shortfall in housing land supply in the
district. She should have concluded, using the
correct policy approach, that there was such a
shortfall. The supply fell below the objectively assessed
five year requirement.
 [28] However, that is not the end of the matter. The
crucial question for an inspector in such a case is
not: is there a shortfall in housing land supply? It is:
have very special circumstances been demonstrated
to outweigh the Green Belt objection?..., such
circumstances are not automatically demonstrated
simply because there is a less than a five year supply of
housing land….. Self-evidently, one of the considerations
to be reflected in the decision on "very special
circumstances" is likely to be the scale of the shortfall.
40

(3b) The RSS Evidence Base
 South Northamptonshire Council v SSCLG [2014]
EWHC 573 (Admin)
 How far did Hunston extend?
 Was an Inspector entitled to have regard to the RSS
evidence base and target where this was higher than
LPA’s own figures and represented last objective
assessment?
 [30] “In my judgment the crucial point to take from
the Hunston case is how to interpret paragraph 47 (i)
of the NPPF, relating the requirement for a full objective
assessment of housing needs in the housing market
area to the subsequent qualification that that be done so
far as is consistent with the policies in the Framework,
before the Local Plan is produced, reconciling or
balancing the two aims.”
41

The RSS Evidence Base [cotd]
 South Northamptonshire [cotd]
 [31] “Before that happens through the Local Plan, the
full objectively assessed housing needs of the area
are not subject to the constraints of policy. Those
constraints fall for consideration later on in the
development control decision-making process, as the
Court of Appeal pointed out; for example in a Green Belt
case, the question will be whether a shortfall of housing
land supply against those fully assessed needs
constitutes very special circumstances so as to permit
inappropriate development in the Green Belt. The
question is not whether the Green Belt constrains
the assessment, but whether the Green Belt
constrains meeting the needs assessed. Once the
Local Plan is adopted, it is the constrained needs in the
Plan which are to be met.”
42

 [32] A revoked RSS is not a basis for the application
of a constraint policy to the assessment of housing
needs, because it has been revoked and cannot be
part of the Development Plan. The same would be
true of an out of date Local Plan which did not set out
the current full objectively assessed needs. Until the
full, objectively assessed needs are qualified by the
policies of an up to date Local Plan, they are the
needs which go into the balance against any NPPF
policies. It is at that stage that constraints or
otherwise may apply. It may be problematic in its
application, but that is how paragraph 47 works.
43

 [34]…It is not wrong in principle to use the evidence base
of the revoked RSS, provided that its figures are not used to
enlarge the housing requirement beyond the full assessment of
housing needs. Hunston did not decide that a revoked RSS
was expunged from history. It decided that the policies of
a revoked RSS, and the same would be true of an out of
date Plan, in the application of paragraph 47 NPPF, could
not be used to affect the full objective assessment of
housing needs.
 [36] The Inspector was entitled to regard it as undesirable for a
shortfall in earlier years to be left till later in the plan period to
be made good, and to hold that it should be made good earlier.
This was a planning judgment to be made in the light of
paragraph 47 NPPF, which looked for a significant and
immediate boost to housing supply. There is nothing
unlawful simply because the RSS had been revoked, in putting
that shortfall into this current 5-year period.
44

(3c) The Change from PPS3
 Gallagher Homes v SSCLG [2014] EWHC 1283
(Admin)
 Local Plan challenge, but vital interpretation of
paragraph 47
 Solihull had relied on old RSS constraints under PPS3
 [91] [Hunston] makes clear that in the context of the first
bullet point in paragraph 47, policy matters and other
constraining factors qualify, not the full objectively
assessed housing needs, but rather the extent to which
the authority should meet those needs on the basis of
other NPPF policies that may, significantly and
demonstrably, outweigh the benefits of such housing
provision. It confirms that, in plan-making, full
objectively assessed housing needs are not only a
material consideration, but a consideration of
particular standing with a particular role to play.
45

Change from PPS3 [cotd]
 Gallagher Homes [cotd]
 [97] [RSS-based argument by Council] fails to
acknowledge the major policy changes in relation to
housing supply brought into play by the NPPF. As I
have emphasised, in terms of housing strategy, unlike
its predecessor (which required a balancing exercise
involving all material considerations, including need,
demand and relevant policy factors), the NPPF requires
plan-makers to focus on full objectively assessed
need for housing, and to meet that need unless (and
only to the extent that) other policy factors within the
NPPF dictate otherwise.
46

 That, too, requires a balancing exercise – to see whether
other policy factors significantly and demonstrably
outweigh the benefits of such housing provision – but
that is a very different exercise from that required pre-
NPPF. The change of emphasis in the NPPF clearly intended
that paragraph 47 should, on occasions, yield different
results from earlier policy scheme; and it is clear that it may
do so.
 [98]: “the radical policy change in respect of housing
provision effected by the NPPF.”
 Court of Appeal: Laws LJ: [2014] EWCA Civ 1610
47

 [16] “That reasoning seems to me to be entirely correct. I
think it is supported not only by the language of
paragraph 47 but also by the terms of NPPF paragraph 14
which I have read. It is not undermined, notwithstanding
Mr Katkowski’s submission to the contrary, by the terms of
the second indent to the second bullet point in that
paragraph. It reflects the construction of paragraph 47 given
by this court in Hunston, which bound Hickinbottom J and
binds us. The NPPF indeed effected a radical change. It
consisted in the two-step approach which paragraph 47
enjoined. The previous policy’s methodology was
essentially the striking of a balance. By contrast
paragraph 47 required the OAN to be made first, and to
be given effect in the Local Plan save only to the extent
that that would be inconsistent with other NPPF
policies.”
48

(4) THE PRESUMPTION IN FAVOUR OF
SUSTAINABLE DEVELOPMENT
49

(5) Paragraph 14: PFSD
 William Davis [supra]
 [37]“I accept Mr Maurici's submission that paragraph
14 NPPF only applies to a scheme which has been
found to be sustainable development. It would be
contrary to the fundamental principles of NPPF if the
presumption in favour of development in paragraph 14
applied equally to sustainable and non-sustainable
development.”
 Dartford BC v SSCLG [2014] EWHC 2636 (Admin)
 [48] “The First Defendant contends that the two
stage test contended for by the Claimant is
misconceived. There is no such legalistic straight-
jacket. Sustainable development is about seeking an
overall net positive contribution to economic, social and
environmental gains together.”
50

The Presumption [cotd]
 “In my judgment the claimant's approach is excessively
legalistic. When the decision letter is read as a whole it is
clear that the Inspector reached an overall conclusion,
having evaluated the three aspects of sustainable
development, that the positive attributes of the
development outweighed the negative. That is what is
required to reach an eventual judgment on the sustainability
of the development proposal. As was recognised in the case of
William Davis (supra) at paragraph 38 the ultimate decision
on sustainability is one of planning judgment….”
51

The Presumption [cotd]
 Dartford BC v SSCLG
 “…There is nothing in NPPF, whether at paragraph 7
or paragraph 14 which sets out a sequential
approach of the sort that Mr Whale, on behalf of the
claimant, seeks to read into the judgment of Lang J at
paragraph 37. I agree with Lang J in her conclusion
that it would be contrary to the fundamental
principles of the NPPF if the presumption in favour
of development, in paragraph 14,applied equally to
sustainable and non sustainable development‑ . To do
so would make a nonsense of Government policy on
sustainable development.”
52

Soundness [cotd]
 Grand Union Investments v Dacorum Borough Council [2014] EWHC
1894 (Admin)
 Early partial review
 Over-supply in first three years; shortfall; Green Belt review
 “61 The crucial question here, therefore, is not whether the core
strategy was sound when considered in its originally submitted
form at the examination, but whether in its final form, incorporating
Main Modification 28, it could properly be regarded as having
become sound so that it was, by then, a plan capable of being
lawfully adopted.”
 “62 To answer that question it is necessary to consider the reasons for
the inspector's conclusion that the submitted core strategy was not
sound, and his reasons for concluding that that unsoundness could be
overcome by Main Modification 28.”
54

Soundness [cotd]
 Gladman v Wokingham BC [2014] EWHC 2320 (Admin)
 Early partial review
 DPD was proceeding on the basis of a Core Strategy that was now out
of date.
 (2) Could the inspector consider the soundness of the MDD
without considering what was the objectively assessed need for
housing, determined in accordance with paragraph 47, and using the
process envisaged by paragraphs 158, 159 and 182, of the
Framework?
 “60 In my judgment, an inspector assessing the soundness of a
development plan document dealing with the allocation of sites for a
quantity of housing which is needed is not required to consider
whether an objective assessment of housing need would disclose a
need for additional housing. I reach that conclusion for the following
reasons.”
55

Soundness [cotd]
 Gladman v Wokingham BC [2014] EWHC 2320 (Admin) (11 July 2014)
 “61 First, the statutory framework does not require such an
approach. The statutory framework recognises that a development
plan may be comprised of a number different development plan
documents.”
 63 Secondly, the Framework properly interpreted, and read against
the statutory background, does not, in my judgment, require the
result contended for by the Claimant.
 66 Thirdly, ….The process of adopting the MDD allocating sites for
required housing would have to stop while a strategic housing
market assessment is carried out or equivalent data obtained.
 67 Fourthly, in reality, the approach of the Claimant would involve
using the perceived need to comply with the Framework as a way of
compelling the Defendant to carry out a full, objective assessment
of its housing needs to discover if additional housing provision were
required.
56

PUTTING HUMPTY BACK
TOGETHER AGAIN

POLICY REFORM
 A policy that is “out of date” may be temporally
up-to-date (i.e. recently adopted)
 But the descriptor “out of date” must, on a
straightforward reading mean that either
(a) the substance of the policy;
(b) its evidential base; or
(c) some critical assumption
has fallen behind current expectations or
requirements

POLICY REFORM
 There has been a radical change in housing
policy (Tewkesbury, Gallagher, and even Dacorum)
 Objective assessment must precede the
imposition of constraints (Hunston, Gallagher)
 However the presumption remains a matter of
planning judgment (Gladman)
 However, the scale of under-supply may well be
relevant – albeit it should only work one way
(Crane)

POLICY REFORM
 The scale of litigation has been unprecedented
 Many more s288s by LPAs testing the
boundaries and asserting political positions (few
have succeeded)
 How will the Government address this?
 NPPF Reform?
 PPG Update?
 Comprehensive legislative reform?

“[19]… Nevertheless,
planning authorities
do not live in the
world of Humpty
Dumpty: they cannot
make the
development plan
mean whatever they
would like it to
mean”
62

Spring Conference, Birmingham
Presented By
Jack Smyth James Corbet Burcher
+ 44 (0) 845 210 5555 + 44 (0) 845 210 5555
js@no5.com jcb@no5.com

Raising the bar

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