England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th November 2014

Mrs Justice Patterson:

Introduction

1. This is an application for judicial review of a decision by Guildford Borough Council dated 20 March 2014 to grant planning permission (under reference 12/P/01973) for the development of a 46 hectare Greenfield site to the south of Ash Lodge Drive, Guildford, Surrey.
2. The planning permission is a hybrid planning permission in the following terms:

"(a) Outline Planning Permission for the development of up to 400 residential dwellings on 22.1 ha of the site including the creation of an access point from Ash Lodge Drive, the demolition of No. 52 South Lane, and the demolition of No. 54 South Lane to enable the creation of a second access point from South Lane. Creation of a primary route through the site and an emergency access link from South Lane. Provision of open space including children's play areas, community allotments, sustainable urban drainage systems and green links on the site.

(b) Full Planning Permission for the change of use from agricultural land to use as a Suitable Alternative Natural Greenspace (SANG) on 24.0 ha of land to the south of the dismantled railway/Christmas Pie route to serve the proposal and the surrounding area, including accesses, pathways and associated landscaping."

3. The claimant is the Parish Council covering the administrative area of the application site. It seeks an order quashing the planning permission.
4. The defendant is the local planning authority for the area. The first and second interested parties are the applicants for planning permission and are the beneficiaries of an option to purchase the application site. The application site comprises various land parcels the title to which is vested in the third and sixteenth interested parties.
5. The claimant was granted permission to bring judicial review proceedings on one ground after an oral renewal hearing before Ouseley J on 27 June 2014.
6. As a result the dispute between the parties is the interpretation and status of policy RE4 of the Guildford Local Plan and whether the officer report significantly misled the Council.
7. Policy RE4 is entitled 'Countryside beyond the Green Belt' (CBGB). It provides that no development is to be permitted upon land subject to that designation on the proposals map unless it is within one of four categories. Policy RE4 reads:

"Development in the Countryside Beyond the Green Belt will be resisted except for that related to:

1. Agriculture and forestry;

2. The reasonable expansion of existing employment uses to diversify the rural economy;

3. Outdoor sport and recreation uses;

4. Uses of land which preserve the openness of the countryside;

And the following criteria are met:

1. Built development is strictly controlled to that reasonably needed for the use to operate;

2. Agriculture and forestry interests are protected;

3. New buildings or extensions are located and designed to minimise their impact on the environment, are satisfactorily screened, landscaped and are constructed of external materials appropriate to the rural setting;

4. The development as a whole will not be of a size and scale that would detract from the character of the rural landscape;

5. Affordable housing for local needs in accordance with Policy H12;

6. The reuse and adaptation of rural buildings in accordance with Policies RE9 and RE10."

8. The reasoned justification to the policy is also relevant. That reads:

"10.19. The small area of the Borough which lies generally to the south and east of Ash and Tongham and part of the Blackwater Valley Area, is beyond the Green Belt and is particularly sensitive to development pressure. This land is an important area of the countryside because it prevents the coalescence of Ash and Tongham with Aldershot to the west (Blackwater Valley Strategic Gap) and Ash Green to the east. It is attractive countryside and should be subject to a restraint policy for its own sake. There are no settlements within the Countryside beyond the Green Belt where some limited development may be suitable. The land to the west of Ash and Tongham is also designated as the Blackwater Strategic Gap under Policy R11. Any development within this area would need to comply with this Policy. The expansion of existing employment uses within this area will not be permitted.

10.20. The Borough Council recognises the benefits to the rural economy a healthy business can bring and will normally support the expansion of existing employment uses providing the criteria set out above are met.

10.21. The countryside provides many opportunities for tourism, sport and recreation which could not be accommodated in the urban area. Such uses can play an important part in the development and diversification of the rural economy but should not damage the landscape and heritage on which it depends.

10.22. Only those forms of development set out above which comply with criteria (1) to (6) will be permitted."

9. The application site falls entirely within CBGB. Policy RE4 was, therefore, applicable to the application.
10. The officer report advising members on the application concluded that the proposed development was in conflict with RE4, and would have a significant and adverse impact on the character of the landscape protected by RE4. Elsewhere in the report members were advised that RE4 was to be afforded "no weight" because it pre-dated the National Planning Policy Framework (NPPF). They were advised also of the benefits that would flow from the grant of planning permission. The members resolved, by a narrow majority, to grant planning permission.

The legal framework

11. There is no dispute as to the legal framework. It can be stated simply.
12. Under section 38(6) of the Planning and Compulsory Purchase Act 2004 an application for planning permission must be determined, "in accordance with the policies of a development plan unless material considerations indicate otherwise."
13. The section 38(6) obligation requires the decision maker not merely to have regard to the plan but to offer it priority. As HH Judge Mackie QC held in South Northamptonshire Council v Secretary of State for Communities and Local Government [2013] EWHC 11 at [20]:

"I conclude from all this that the section (section 38(6)) requires not a simple weighing-up of the requirement of the plan against the material considerations but an exercise that recognises that while material considerations may outweigh the requirements of a development plan, the starting point is the plan which receives priority. The scales do not start off in an even balance."

14. The meaning of policies of the Development Plan is a matter of law: see Tesco Stores Ltd v Dundee City Council [2012] UKSC 13.
15. In dealing with officer reports the position was summarised in R (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 at [19]:

"It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a commonsense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee. In R v Selby District Council ex parte Oxton Farms [1997] EGCS 60, Judge LJ, as he then was, said this:

"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.""

Absent reasons to the contrary where members have voted in accordance with their officer's recommendation it can reasonably be inferred that they voted for the reasons set out in the officer report.

16. The NPPF sets out the Government's policy for planning. Of particular relevance to the instant claim are the following:

"14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running though both plan-making and decision-taking.

…

For decision-taking this means:

approving development proposals that accord with the development plan without delay; and

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

specific policies in this Framework indicate development should be restricted."

…

17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should:

be genuinely plan-led, empowering local people to shape their surroundings…. Plans should be kept up-to-date…

…

take account of the different roles and character of different areas…recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it…

…

contribute to conserving and enhancing the natural environment and reducing pollution…

…

47. To boost significantly the supply of housing, local planning authorities should:

use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for … housing in the housing market area, as far as is consistent with the policies set out in this Framework…

identify and update annually a supply of specific deliverable 11 sites sufficient to provide five years worth of housing against their housing requirements…

…

49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

…

211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

…

215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."

17. Although the NPPF is a material consideration it is not of equal legal force to the policies in the Development Plan: see Sea and Land Power Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 and Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 at [46]:

"All of this, one has to remember, sits within the statutory framework for the making of decisions on applications for planning permission, in which those decisions must be made in accordance with the development plan unless material considerations indicate otherwise. Government policy in the NPPF does not, and could not, modify that statutory framework, but operates within it – as paragraph 12 of the NPPF acknowledges. The Government has taken the opportunity in the NPPF to confirm its commitment to a system of development control decision-making that is "genuinely plan-led" (paragraph 17). But in any event, within the statutory framework, the status of policy in the NPPF, including the policy for decision-making in paragraph 14, is that of a material consideration outside the development plan. It is for the decision-maker to decide what weight should be given to the policy in paragraph 14 if it applies to the case in hand. Because it is government policy it is likely to command significant weight when it has to be taken into account. But the court will not intervene unless the weight given to it can be said to be unreasonable in the Wednesbury sense (see paragraph 19(3) above)."

18. A development plan policy should not be regarded as "out of date" for the purposes of the NPPF simply because it is restrictive. What is required is a comparison of substance and not form. As Timothy Straker QC (sitting as a Deputy High Court Judge) held in Chase Milton Energy v Secretary of State for Communities and Local Government [2014] EWHC 1213 at [16]:

"Mr Pike argues that the policies in the local plan are to be categorised as restrictive and consequently that they are inconsistent with the National Planning Policy Framework. I am not at all convinced as to the merit of giving particular policies a label and then using that label as a means to argue that they inconsistent with other policies in the Framework. The Framework is intended to be just that, and one can refer in that instance to paragraph 1 of it."

19. Paragraph 49 of the NPPF applies only to policies for the supply of housing. The meaning of such policies has been recently considered by Ouseley J in South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 at [46] and [47]:

"46. That phraseology is either very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing, ignoring any other policies dealing generally with the location of development or areas of environmental restriction, or alternatively it requires a broader approach which examines the degree to which a particular policy generally affects housing numbers, distribution and location in a significant manner.

47. It is my judgment that the language of the policy cannot sensibly be given a very narrow meaning. This would mean that policies for the provision of housing which were regarded as out of date, nonetheless would be given weight, indirectly but effectively through the operation of their counterpart provisions in policies restrictive of where development should go. Such policies are the obvious counterparts to policies designed to provide for an appropriate distribution and location of development. They may be generally applicable to all or most common forms of development, as with EV2, stating that they would not be permitted in open countryside, which as here could be very broadly defined. Such very general policies contrast with policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation, all of which could sensibly exist regardless of the distribution and location of housing or other development."

The officer report

20. The application was reported to committee on 24 September 2013 with a recommendation to approve the application subject to a section 106 agreement and conditions.
21. The objection of Ash Parish Council with its many points of concern was set out in a series of bullet points in the report. There was no mention within the objection of policy RE4.
22. Ash Green Residents' Association also objected and made the point that coalescence of Ash Green into Ash/Tongham will urbanise and destroy the character of Ash Green.
23. The principle of development was dealt with in a section of the report:

"Paragraph 47 of the NPPF requires the council to identify a five-year housing land supply of sites that are deliverable. As Guildford has not currently identified either a housing requirements level or a five-year housing land supply (based on our interim housing figure of 322) then the policies relating to the supply of housing are considered to be out of date.

The NPPF says that planning applications for housing should be considered in light of the presumption in favour of sustainable development. Paragraph 49 states "Relevant policies for the supply of housing should not be considered up to date if the local authority cannot demonstrate a five-year supply of deliverable sites." The Council does not have a five-year housing land supply so the default position should be to approve the application unless there are material considerations that dictate otherwise. The saved policies from the Local Plan do not provide up to date allocations or an up to date housing requirement.

According to the NPPF (Paragraph 215), the weight that can be accorded to policies that pre-date 2004 depends on their degree of consistency with the NPPF. Local Plan saved policy RE4 does not conform to the NPPF and therefore cannot be accorded any weight in the determination of planning applications. The impact of this is that designation as CBGB confers no preferential protection to the proposal site.

The NPPF also states that decisions should also consider whether any policies in the NPPF specifically restrict development. In this case there are no policies that restrict development on land classified as CBGB. Furthermore, the proposal site does not benefit from any other designation, such as AONB or Site of Special Scientific Interest (SSSI). Part of the proposal site is a SNCI. This local designation carries no statutory recognition but in any case, the proposal identifies that part of the site to be maintained as open space.

The history of policy RE4 is important. When the policy was being assessed for the 1999 Local Plan, the Council advised that the long term role of CBGB was to provide opportunities for growth once urban sites have been exhausted. It was therefore inappropriate to apply Green Belt policy to the land."

24. The report continued:

"The key benefits that arise from this proposal include the provision of housing (both market and affordable housing) for which there is a significant need in the borough. Development of this site will lessen development pressure on the Green Belt. The proposal also provides for a significant area of SANG which could be of benefit to the wider area. Other factors that weigh in favour of the development are (i) the CBGB designation of the site, which offers no protection against development; (ii) a lack of any policy restricting development in this location; and (iii) a lack of a five-year housing land supply."

25. A separate section of the report dealt with the impact of the development on the character of the area. That said that whilst the principle of development was acceptable the impact on the character of the area must also be acceptable. Having provided a general description of the landscape character the report then analysed the landscape sensitivities. Within the section officers acknowledged that development would have an impact on the outlook for residents and would undoubtedly result in a change in the character of the open fields. However, new housing development would be viewed against a backdrop of existing built development on three sides. The report continued:

"At this Outline stage, it is the principle of development that the applicant is seeking to agree. Officers must have regard to the core planning principles of the NPPF, the most relevant of which, for this application, is to "take account of the different roles and character of different areas… recognising the intrinsic character and beauty of the countryside…"

The site clearly forms part of the open countryside. Whilst the site is surrounded by built development on three sides (Manor Road, Ash Lodge Drive and South Lane), there is at least a 580 metre gap between buildings on Manor Road (Ash Manor School) and dwellings in South Lane. Therefore, there is no feeling of being surrounded by development; the site has an open, rural feel. Furthermore, and certainly from Ash Lodge Drive, the fields of the application site provide a transition from the built up urban area to open countryside. The proposal will completely change this character.

Whilst the GLCA states that the landscape at the immediate urban edge is generally of poor quality, this would not be an accurate description of this piece of land. The mature tree belts and the long distance views across open fields means that the land does have intrinsic character and beauty.

As the local plan is out-of-date, the NPPF states that permission must be granted unless the adverse impacts "significantly and demonstrably outweigh the benefits". Developing this open land would have a significant and adverse impact on the character of the area. This impact weighs against the proposal and must be considered, together with any other adverse impacts, against the benefits of the scheme.

The full balancing exercise can be found in the conclusion to this report, following full consideration of this proposal."

26. The conclusion to the report set out the presumption that development should be plan led which meant that the Guildford Local Plan was the starting point for decision making. The concluding section continued:

"The site is open countryside where there are policy constraints, in the form of saved policy RE4, which seeks to restrict development in open countryside beyond green belt. A housing development of this scale is not one of the general exceptions to this restriction. Policy RE4 is a constraint that weighs against the application and which is also covered in the NPPF at paragraph 17, which requires, as one of the core land use planning principles, that the intrinsic character and beauty of the countryside should be recognised.

However, because policy RE4 pre-dates the NPPF, it is not a relevant and up to date policy, and the NPPF clearly advises that no weight can be given to policy RE4 in determining this application. Therefore, other material considerations have to be considered."

27. Having looked at the benefits the report continued:

"Developing this area of open land would have a significant and adverse impact on the character of the area, and this impact weighs against the proposal. However, all other potentially harmful impacts, such as on flooding and drainage, highway movement and safety, protected species, archaeology and neighbouring amenity have been carefully considered, and with the imposition of suitable conditions, any harm can be successfully mitigated against. The relevant statutory consultees, including Natural England, Environment Agency, Surrey Wildlife Trust and Surrey County Council, have been consulted and have indicated that they have no objections to the principle of development.

Paragraphs 47 and 49 of the NPPF, read alongside paragraph 14, are engaged. In the absence of a 5-year land supply, the NPPF gives strong support to the grant of planning permissions for housing schemes on sites such as this one. The need to provide an adequate supply of deliverable housing land outweighs Policy RE4 of the out of date Local Plan.

The substantial and historic shortfall in supply of housing in the area is a material consideration that carries significant weight in favour of granting permission. This, together with other material considerations, outweighs the general presumption against housing development in the countryside as set out in Local Plan Policy RE4.

Whilst there is potential harm to the character of the area, it is not considered that this significantly or demonstrably outweighs the considerable benefits identified in the report. On balance, given the significant benefits that the scheme would offer in terms of new homes and local infrastructure, the balance tips in favour of the development, in line with the NPPF."

28. The overall conclusion was that the proposed development of land at Ash Lodge Drive would accord with the policies of the NPPF as a whole and the application should be granted planning permission as the adverse impacts did not significantly and demonstrably outweigh the benefits.

The Council Meeting of 25 September 2013

29. Members were advised orally at the Council meeting by Carol Humphrey, Head of Planning Services, Tim Dawes, Development Control Manager and Tara Taylor, a member of the Planning Department.
30. Ms Humphreys began by making a couple of overarching and contextual comments and reminded members that they were without a five-year supply of housing land within the borough.
31. Ms Taylor set the policy context as follows:

"Ok, I'm just going to run briefly through the key issues relating to policy context for the determination of this planning application. The starting point for considering applications is the development plan unless material considerations indicate otherwise. In this case the starting point is therefore the 2003 local plan and the policies that have been saved. The application site is land that has been locally designated as Countryside beyond the Green Belt. Policy RE4 of the 2003 local plan gives this land similar protection to that of green belt. However, in March 2012, the Government published the National Planning Policy Framework (NPPF), this is an important material consideration as it sets out the Governments most up to date planning policies. Under the NPPF local land designations, such as Countryside beyond the Green Belt are not recognised and the principle of developing the land for housing is now acceptable. At the heart of the NPPF is a presumption in favour of sustainable development……All the adverse impacts and benefits have been considered within the officer report and a balancing exercise undertaken before reaching a recommendation."

32. Mr Dawes addressed members on the impact of the development:

"Returning to impact on character this is an indicative plan showing how up to 400 houses could be developed on the land. The character of the land adjacent to the certain area is broadly flat and is a series of open fields subdivided by established treebelts and hedgerows and these trees are protected by a Tree Preservation Order. The land is bound on the south by a disused railway line and is well used by local persons for recreational purposes. The land is also designated in the council's adopted land character assessment as Tongham rural urban fringe. The land has also been carefully assessed by the applicants through the Environmental Statement which in turn has been scrutinised by our own external consultants. The report before you today clearly demonstrates that there will be a significant impact on the local area by developing the land for housing that is fully recognised in the report, however it is this impact and the harm that must be weighed against the provision of 400 houses and that is the balancing exercise that Councillors will need to do tonight."

33. Mr Ashley Bowes acting on behalf of the Ash Residents Association addressed the meeting and said:

"Madam Mayor, Councillors, good evening. I am a planning barrister instructed by the Ash Residents Association to assess this application against the relevant legal and policy tests. We acknowledge that there is a need for housing in Guildford Borough and that this scheme presents a contribution to that need, with a number of units illustrated as being affordable. However, this is the wrong scheme to meet those needs for two principle reasons. First of all it is the wrong site. This is a green field site which still performs an important function of making it's maintaining a separation between Ash and Tongham and preserving their prospective characters. Your own officer concedes that this development will completely change the character of the area and that that change will be significant and adverse. The NPPF is clear that local character is a material consideration, this scheme fails to preserve it and consent should be withheld accordingly."

34. Ms Humphreys responded to the objections and said:

"Thank you Madam Mayor, in terms of whether it is the wrong site those planning committee members who know me quite well will know that I generally say that you have to deal with the planning application which is in front of you. Whether it is the wrong site or not I cannot give you advice you will need to balance all the material planning considerations and come to a view but you have to determine this application because that is the application which has been made by Bewley Homes and A2Dominion.

…

However, we do have a development plan in play. It is the 2003 Local Plan. We also have the NPPF and a number of ministerial statements that guides the authority in terms of its decision making processes. It would be entirely wrong for the council to issue a moratorium on development because it would not just apply to this scheme but it would apply to all planning applications whilst we determine the new Local Plan. I think that would be abdicating our responsibility as a reasonable local authority. So I know the juxtaposition of this application and the Local Plan process is difficult but it does not preclude you from making a decision tonight on the planning application."

35. The application was approved finally by eighteen councillors voting to approve the application with fourteen members voting against.

Submissions

36. The officer report correctly identified policy RE4 as being engaged with the application and correctly concluded that the scheme would conflict with the policy. It continued that the historic shortfall in the supply of housing in the area outweighed the general presumption against housing development in the countryside contained in policy RE4. Against that background they reached a very clear view that policy RE4 should be accorded no weight and that the CBGB designation offered no protection against development. The concern is with the inconsistent advice that was given. The claimant submits that is an erroneous approach.
37. Even if it was correct that no weight should be attached to the policy the reasons for adopting that approach needed to be justified. The reasons were based upon a misinterpretation of the NPPF and were, therefore, unlawful.
38. However, the concern is with the inconsistent advice that was given. That meant that members were confused as to the approach to be taken.
39. As Ouseley J said when giving judgment at the permission hearing:

"2. Even if, moreover, RE4 is inconsistent with the NPPF in relation to general countryside policies, it is not inconsistent with the NPPF, at least arguably, insofar as it relates to the character and beauty of a particular piece of land. That appears to be an aspect of the justification for the policy.

3. Accordingly, even if the Authority were to have taken the view that RE4 was part inconsistent with NPPF, the approach to the development plan in relation to that part of RE4 which was not inconsistent with NPPF, would have been that there was no reason to give less weight to the breach of the development plan in relation to that aspect. As it is, the approach to RE4 is arguably unlawful because the officer's report advises in a number of places that the policy is to be given no weight and cannot be accorded any weight."

40. The aims of RE4 in separating settlements and protecting countryside character remain relevant and up to date as evidenced in the NPPF.
41. The claimant does not accept that the advice that was given by officers, which is admitted by the defendant to be confusing, was corrected orally.
42. The defendant and the interested party maintain that the defendant took the proper starting point of the development plan. Both accept that there are clumsy passages in the officer report. However, the test is whether, when the report is read in context, the councillors were significantly misled. Their submission is that the councillors were not. That is because there is no requirement within the policy to have regard to the effect of any development which took place.
43. The history of policy RE4 which is that it was to be seen as an area of land potentially suitable to meet long term development needs is a material consideration. That illustrates that the policy designation was capable of being overridden and was not there for long-term protection.
44. It was highly material that there was no policy in the Guildford Local Plan with a housing requirement nor housing supply which was NPPF compliant. There was a substantial shortfall of housing land. The provision of housing on the land would lessen the pressure on the Green Belt.
45. Councillors were advised as to the intrinsic character and beauty of the land and the significant and adverse impact of development on the character of the area. However, the absence of a five-year housing land supply and the need to provide an adequate supply of deliverable housing land outweighed policy RE4.

Discussion and conclusions

46. As both the defendant and interested party accept the report, in parts, is not a model of clarity. However, it has to be read as a whole and the critical issue is whether the councillors were significantly misled.
47. It is right also that mixed messages were given about the weight to be attached to policy RE4 within the committee report. However, as set out above, officers addressed councillors at the meeting on 24 September 2013. From the transcript it is clear that correct advice was given as to the statutory provision, namely, that the starting point was the development plan. There was a policy directly applicable to the application site, RE4, which gave the land similar protection to the Green Belt. That was breached by the development proposals.
48. All of that advice, so far as it goes, is unimpeachable. RE4 is a strict restraint policy subject to particular exceptions. Those exceptions do not include housing upon land which is subject to policy RE4. The reason for that was the satisfaction of development needs elsewhere at the time that the Guildford Borough Local Plan was going through its processes. It was adopted in 2003.
49. The CBGB land had other functions: a spatial function to prevent coalescence between settlements and the preservation of attractive areas of countryside. In other words, some of the justification for the policy clearly remained relevant and up-to-date after the publication of the NPPF but the blanket restriction of development subject to the specified exceptions did not. As such the policy was entitled to some weight. The precise amount of weight was clearly for the decision maker and was capable of being overridden by other material considerations.
50. Reading the report as a whole and in the context of oral advice given to members, in my judgment, it cannot be said that the councillors were significantly misled by the advice given to them. The reasons for that view are:

i) The express primacy of the development plan and the express acknowledgement in the overall conclusions of the report that it was the starting point for consideration of the application. That advice was repeated orally by officers at the committee meeting;

ii) The oral advice to members re-iterated that there was a presumption in favour of sustainable development and that the borough was without a five year supply of housing. Those factors were correct;

iii) The location of the application site in open countryside where there were policy constraints in the form of RE4 which sought to restrict development was set out, as was the character assessment of the impact of the development on an attractive piece of countryside;

iv) Against those factors members were told to weigh the benefits of the proposal. Significant amongst those was the provision of housing development when there was a substantial and historic shortfall in the supply of housing in the area. Neither the housing requirement nor the supply was NPPF compliant. The saved policies in the Local Plan did not provide an up to date housing requirement as sought in paragraph 49 of the NPPF;

v) In addition, affordable homes were to be provided which, at 40%, was more than the policy requirement of the defendant. There were improvements to existing public transport and highway infrastructure, outdoor sports provision at Ash Manor School, a vocational centre, community allotments, reservation of land for a new health building and improvements to Ash Library;

vi) Members were reminded that land subject to policy RE4 in the Guildford Local Plan was to provide opportunities for growth once urban sites had been exhausted and were advised that it was inappropriate to apply Green Belt policy to the land. That was a consideration that was capable on having a significant effect on determining whether the principle of development on the application site was acceptable;

vii) However, the strict development restraint applied through RE4 in a blanket fashion across the only areas of Guildford which were not within the Green Belt meant that the policy was out-of-date in that regard as it did not provide for the effect of any development upon the character of the area. In considering the weight to be attached to policy RE4 it was not, therefore, merely a matter of its chronological age but how it complied with the approach in the NPPF and, in particular, with its core principles;

viii) The claim that the defendant took an inverted approach to the application as it failed to consider the development plan first and apply it so that the issue is not just of weight to be attached to the policy is unsubstantiated on a fair and commonsense reading of the report and oral advice given to members when, in my judgement, it is evident that the defendant did indeed take the development plan as its starting point;

ix) The impact of the development on the character of the area was analysed as it was recognised that for development to be acceptable the impact on the character of the area had also to be acceptable. The site was noted as one which had intrinsic character and beauty which would be adversely affected by the development;

x) However, the need to provide an adequate supply of deliverable housing land when there was a substantial and historic shortfall in the supply of housing was a material consideration which was capable of outweighing policy RE4 and one that outweighed the harm to the character of the land. Members were advised that significant weight could attach to the substantial shortfall in housing land supply so that, as a matter of judgment, other material considerations outweighed the breach of the development plan. That was a classic matter of planning judgement for the decision makers that they were entitled to reach;

xi) The officers recorded in the report that the impact of the designation as CBGB (under RE4) conferred no preferential protection to the proposal site. It is not entirely clear what that meant when looked at in isolation but in terms of the strict restraint aspects of the policy which put it out of conformity with the NPPF it was correct.

51. Some of the wording in the report is undoubtedly infelicitous. The report also contains errors when it advises members that no weight should attach to RE4 because it pre-dates the NPPF. However, that is not the only advice which is given about the relationship of the policy with the NPPF. Other references deal with a lack of conformity other than simply because policy RE4 pre-dated the NPPF. To give the policy reduced weight was, therefore, correct on the basis of paragraph 215 of the NPPF. The report has to be construed as a whole and in the light of oral advice given at the committee meeting.
52. Accordingly, policy RE4 was correctly identified as the relevant policy in the development plan non-compliance with which needed to be outweighed. The weight to be attached to it was reduced because of its non-conformity, in part, with the national policy in the NPPF. The defendant was, therefore, entitled to give it reduced weight. Having been through the evaluation of other material considerations to determine the planning balance the need for housing, in particular, was identified as a significant material consideration. The conclusion that the application should be granted permission as the adverse impacts of the proposed development did not significantly and demonstrably outweigh the benefits was one which the defendant was entitled to come to.
53. In case their submissions were wrong the defendant and interested party both addressed the issue of discretion. Strictly, it is not necessary for me to do so given my finding on the main issue. For the sake of completeness though I do.
54. It is clear that members had to have regard to the five-year supply of housing, or lack of it, within the borough. It is clear also that although there was harm to the character of the land that was clearly outweighed by the material consideration of housing supply. The application site was land that was envisaged as being suitable for longer term development needs. Because it was outside the Green Belt it was in one of the least constrained areas of the borough. If RE4 should have been given greater weight I am in no doubt that the eventual decision would have been the same. In the circumstances had it been appropriate to do so I would have exercised my discretion and refused relief.
55. It follows this application fails.