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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> South Oxfordshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 1173 (Admin) (19 May 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1173.html
Cite as: [2016] EWHC 1173 (Admin)
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| SOUTH OXFORDSHIRE DISTRICT COUNCIL |
Claimant |
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| - AND - |
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| SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT -AND- CEMEX PROPERTIES UK LIMITED |
First Defendant Second Defendant |
____________________
Mary Cook (instructed by Pinsent Mason, Solicitors of Manchester) for the Second Defendant
The First Defendant did not appear and was not represented
Hearing dates: 6th May 2016
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Crown Copyright ©
- This case involves another challenge to the way in which an Inspector of the Defendant Secretary of State has interpreted and applied the policies in NPPF, the policy guidance of the SSCLG which dates from 2012. In this matter SODC seek to challenge a decision letter of the Inspector of the SSCLG issued on 14th October 2015, whereby she allowed the appeal by CUK under s 78 TCPA 1990 against the refusal of permission of 5th September 2014 by SODC of the outline planning application of CUK for residential development of up to 120 dwellings and open space at a site off Crowell Road, Chinnor.
- Surprisingly, the Inspectorate had so organised matters that the same Inspector, dealing with two proximate sites in the same village were the subject of separate public inquiries, held on 19-21st May 2015 (TW) and 16th-19th and 23rd June 2015 (CUK). Their cases were not put by the two Appellants in quite the same way, which has led to challenges by SODC relating, among other grounds, to an alleged inconsistency between the two decision letters.
- Both decisions were the subject of challenges under s 288 TCPA 1990 by SODC, and the challenge to the TW decision was listed to be heard with the challenge to the CUK decision letter, which is the subject matter of this judgment. However after he had spent the morning of the day of hearing opening his case against CUK, Mr Westmoreland Smith informed the Court after the short adjournment that SODC was no longer pursuing its challenge against the TW decision. I shall return to that topic in due course.
- As will become apparent these were two of a number of appeals against decisions by SODC, held over a short timescale, where the effect of the tests in NPPF on its housing policies was the subject of great debate. As it turned out different Inspectors reached conclusions which are hard to reconcile on that issue. It has not led to consistency in decision making. Those problems would have been avoided had one inquiry been held. I find it even more puzzling that two virtually adjacent sites should be the subject of two different inquiries, but before the same Inspector. If one Appellant puts a case differently from the other, or an argument is raised by another party, or put in a different way, in one inquiry but not the other, but which affects how the Inspector regards the planning context, it can only place the Inspector in potential difficulty, and in some cases lead to protracted correspondence after the inquiry has finished about ensuring that all parties have the chance of commenting on all relevant evidence.
- Having set the scene, I shall deal with the matters as follows
- Chinnor is a village in South Oxfordshire lying just below the north western escarpment of the Chilterns, in the part of the County lying east and north of the M40 motorway. It is described in emerging Local Plan material as
- That Old Kiln Lakes development lies to the south east of the village, on the south-eastern side of the former Chinnor Princes Risborough Railway, which used to serve the cement works. Between the area formed by the old cement works (and now developed for housing) lies a roughly rectangular area of undeveloped land, running from southwest to northeast. It is abutted by the old railway line and cement works on higher land to the south east, housing development to the north west, and housing development to the north east. The TW site occupies 3.4 hectares at the north eastern end with housing on two sides (north west and north east) and with the old railway line with housing beyond it on the third south eastern side. It is separated from the CUK site by a field to its south west. The CUK site lies at the south western end of the rectangle, with housing development to the north. On the south eastern boundary there is the former railway. There is housing development at the north eastern end of that boundary on the other side of the railway line, and the lakes associated with the old cement works to the south east.
- In the case of the CUK site, it was refused on 9th September 2014 on two grounds. The second was addressed by an agreement between the parties. The first stated that the development lay on the edge of Chinnor on a site not allocated for development on a Development Plan, including a Neighbourhood Plan, and was not considered to be an infill site within the built up limits of the settlement. The development was therefore said to be contrary to Polices CSS1, CSR1 and CSH1 of the adopted Core Strategy. It was also said that it would extend into and encroach upon the adjacent countryside, contrary to policies G2, G4, C4 and D1 of the adopted South Oxfordshire Local Plan 2011 and advice set out in the South Oxfordshire Design Guide and the South Oxfordshire Landscape Assessment.
- In the case of the TW site its first reasons for refusal echoed that applied to the CUK site, save that there was no reference to Policy D1 of the Local Plan, nor to the Design Guide or Landscape Assessment. There were other reasons for refusal, but they too were overcome by agreement.
- The statutory Development Plan consisted of two documents;
- The Core Strategy contains polices on the overall strategy, on housing provision and other relevant topics. The overall strategy is described at paragraphs 4.1 ff
- Establishing a strong network of settlements with the aim of making the district more self-sufficient, however, still recognising its predominantly rural nature and the proximity of major service and employment areas close to it.
- Supporting a movement strategy that strengthens the linkages to key places, allows a greater choice of transport modes, enables local initiatives to prosper and manages traffic to improve the quality of the environment.
- Delivering a spatial strategy to meet the economic objectives of creating a thriving economy with a range of jobs including more high value jobs. Developing a workforce with the necessary skills, whilst meeting the needs of existing firms and addressing the needs of the economy of the rural areas.
- Delivering new homes to meet needs in locations that support the strategy and deliver the type of housing that meets people's needs and supports economic growth.
- Providing a town centre and retailing strategy which regenerates our town centres."
- Policy CSS1 appears in that chapter. It reads:
- It follows that development was to include that which would support and enhance the village of Chinnor as a local service centre.
- A Table 4.1 then appears, setting out "what the strategy will deliver" in terms of housing, employment and town centre uses. The housing section reads thus:
- Chapter 7 deals with housing policies, entitled "Delivering new homes." It describes how there is a need for more housing to cater for a growing population [7.1], falling household size [ibidem], to provide affordable housing [ibidem], and to provide sufficient houses for the workforce who will drive economic growth [7.2]. That led to the decision to continue with the numbers set in the South East Plan of May 2009 [7.4] for the period to 2026, plus an extra years' worth of housing to take planning up to 2027, in accordance with the 15 year horizon advised in NPPF [7.6].
- As to housing distribution, having considered the effects of the needs generated in the City of Oxford [7.8] it then described its strategy thus:
- That Table 7.1 states:
- It is followed by Policy CSH1, which reads:
- Paragraphs 7.14-15 and Table 7.2 deal with provision in Didcot, and requires no examination here. Paragraph 7.16 onwards deals with "Rest of the District." It refers to Chinnor as one of the "villages offering most services and with the ability to act as local centres." Paragraph 7.20 goes on to say that 1154 dwellings would be allocated between them and a small area of land near Oxford at Bayswater Farm, stating that
- Chapter 13 deals with "Rural Communities." It is unnecessary to refer to the supporting text, save to say that it cross refers to the objective of the provision of housing development across the District which respects Green Belt and AONB designations, the scale of existing settlements and maintains the general balance between the market towns and villages [13.7]. It then contains a policy CSR1 on "Housing in Villages." In the case of "larger villages" of which Chinnor is one , the policy reads:
- The Plan also refers [13.10] in the supporting text to paragraph 7.20 and how the Site Allocations DPD will identify sites in the larger villages. [13.11] states that the Development Management Policies DPD was to include detailed criteria for housing in villages.
- Pausing there, it will be apparent that the Development Plan anticipated that there could properly be allocations in the larger villages such as Chinnor.
- Chapter 18 deals with "implementation of the strategy." The section sets out "how we will deliver the strategy" [18.1]. It describes "Delivery Mechanisms" [18.2] saying that the strategy sets out key principles, but goes on to say that
- Under the heading of "Delivery and Contingency" [18.6] it refers to table 18.1, which it describes as showing "when the housing provisions in this strategy are anticipated to deliver" (sic). Having referred to dealing with contingencies and slippage it then states that if development is not coming forward in a timely manner, the Council will implement the measures in Policy CSC1. That policy states:
- Table 18.1 deals with the "Anticipated Delivery of Housing Development." In the case of the Larger Villages, it shows the supply from sites to be allocated as 1154 dwellings (see table 7.3 above), and as being delivered in the periods 2017/8 to 2021/2 (615 dwellings) and 2022/3-2026/7 (539 dwellings).
- Table 18.2 is a complicated table. I shall attempt to summarise what it says in the case of different policies.
- As to the Local Plan, I shall refer to the policies of relevance to the cases argued before me. I shall include the parts of the polices redacted on the adoption of the Core Strategy (shown by square brackets). They may have a significance in understanding the significance of the policies. Section 2 deals with "The General Approach". It includes the following:
- Within the next section "Protecting and enhancing the built and natural environment" one finds, among other polices:
- Section 4 deals with "Encouraging sustainable and high quality development". It includes the following:
- Since the Local Plan was adopted in its saved form, there have been other developments. While the Core Strategy looked to the Site Allocations DPD as the way of identifying sites for development, no DPD addressed the allocation of sites in the larger villages such as Chinnor. In 2014 a SHMA for Oxfordshire was published. It showed a higher housing requirement than shown in the Core Strategy. Of course national policy in NPPF at paragraph 159 is explicit on the value of such an assessment, in the chapter on Plan Making:
- As a result, SODC has decided to abandon the Site Allocations DPD. It has not objected to the figures produced by the SHMA, although it has not resolved to accept them. However it has embarked on the process of preparing a Local Plan for the period to 2031. So far as Chinnor is concerned, it states that "we need to find at least 160 new homes in Chinnor." That process has considered a number of sites, including both the CUK and TW sites. All the other sites are on the periphery of the village. It has shortlisted the TW site and two others for public consultations. The document refers to the two appeals, and states that if either or both are allowed, they will form part of the allocation for Chinnor. One notes also that the effect of the amendments to the original Local Plan policy G4 (and to the supporting text at [2.14]) is to remove the policy seeking to prevent development in the countryside.
- One of the issues at the two inquiries was whether SODC had a 5 year supply of housing land in accordance with the policy guidance at NPPF paragraph 47. NPPF also states that relevant polices for the supply of housing land should not be considered up to date if the LPA cannot demonstrate a five year supply of deliverable housing sites.
- At the start of the hearing of this matter before me, Mr Pereira QC for TW put in a copy of a "Housing Supply Statement" issued by SODC. It referred to two appeal decisions on land at Wallingford and Chinnor, issued in March 2016, both of which determined that the housing requirement should be taken as that in the SHMA, and not the Core Strategy. The effect, according to the document, was that the
- This statement was not before the Inspector making the decision which is now under challenge. It only has relevance if the issue arises of whether SODC has suffered substantial prejudice as a result of the decision and its reasoning.
- The issues argued before the Court involved the interpretation and application of NPPF. I shall in due course refer to the authorities on its status, meaning and application.
- The parts relevant to this matter are:
- While Chapter 6 "Delivering a wide choice of high quality homes" was referred to before me, it is not necessary to set it out at this stage, save for paragraph 49:
- At the inquiries the positions adopted were as follows. I have taken them from the final submissions made to the Inspector, which were provided to the Court.
- SODC argued thus at the TW inquiry:
- The TW position at its inquiry was:
- The SODC position at the CUK inquiry was as follows:
- The CUK approach was:
- The Inspector allowed the TW appeal. In her Decision Letter at paragraph 2, the Inspector identified the main issues as:
- The Inspector addressed the first issue, concluding at paragraph 26 that:
- She then went on to consider matters relating to the amount and location of new housing (relevant to the second issue) at paragraphs 29-38:
- She then went on to consider a planning obligation and some other matters, before turning to the three dimensions of sustainable development set out in paragraph 7 of NPPF, as follows:
- In her Decision letter on the CUK site the Inspector described the main issues at paragraph 2 as:
- On the first issue, she addressed various matters. I need to refer only to what she said at [16, [17], [21] and [22], [24] and then her overall conclusion at [25].
- On the first issue, she concluded at paragraph 25 as follows:
- In the light of what is argued in Ground 5, it is necessary to note that en route to that conclusion, she said this at [31]-[32]:
- Having then considered other matters, she turned to the question of sustainable development, and set out the following:
- On 7th April 2016 the Government Legal Department wrote to say that the First Defendant Secretary of State was not resisting either claim. The reason given was as follows:
- Mr Westmoreland Smith argued the following case for SODC:
- On Ground 1 Mr Westmoreland Smith said that the case put for CUK at the inquiry was that the development plan was "silent" in terms of NPPF [14]. He referred to the judgment of Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754(Admin) at [42]-[63] on the interpretation and application of paragraph 14 of NPPF:
- He contended that the issue of "silence" is one of weight. But in the light of Bloor, a plan is not silent if it says something relevant, albeit not very much. The Decision Letter at [36] misunderstood the Bloor test. While she had set out the test in paragraph 50 of Bloor (whether there was a body of policy relevant to the proposal being considered, and sufficient to enable the development to be judged acceptable or unacceptable) she had failed to apply it properly. The Local Plan did contain policies which were relevant (Policies G2 and G4) with which she had found at [25] there was conflict. SODC also relied on the other policies referred to. She had considered whether the Plan was silent on where and how much land should be allocated for housing at Chinnor [35] but she should have looked at the whole range of development plan policy and not just that.
- She relied on this approach, and did not address what had been a matter of lively dispute at the inquiry, namely the question of whether or not SODC had identified a 5 year land supply. It followed that she had failed to determine a principal controversial issue between the parties.
- Mr Westomoreland Smith argued that as well as conflict with Local Plan G1 and G4, there was a conflict with policy CSC1, because the contingency identified in the policy had not yet arisen, namely that allocated sites had not come forward.
- It should be noted that in the TW case, that Appellant had put its case on paragraph 14 of NPPF on the basis that the policy was not "up to date". The Inspector referred to there being a "policy vacuum" with regard to where the houses to meet the strategic objectives of the Core Strategy should go in the larger villages (TW decision [33] [38] and [61]. The Inspector did not apply paragraph [14] of NPPF as she had in the CUK decision.
- Mr Westmoreland Smith informed the Court that one of the reasons why SODC was conceding against TW was that if paragraph [14] was engaged, on the basis that the Development Plan policies were not up to date, permission should be granted. In submissions he said that the Inspector had, in the case of TW, approached the issue of the relevance of the Development Plan policies by approaching it as a point of weight.
- SODC was substantially prejudiced by the failure of the Inspector to deal with the matter properly.
- On Ground 2 Mr Westmoreland Smith argued that this was a case where the Inspector should have applied a consistent approach to the application of paragraph [14] of NPPF. Further, in the case of the conflict with policy CSR1 (in the sense that neither site was allocated for development) she had found that the conflict was overridden by the silence of the development plan in a NPPF paragraph 14 sense ([41]) whereas in the TW case, her approach was that the absence of the Site Allocations DPD was one of five factors which led her to attribute less weight to the policy conflict (TW DL [32] and [37]). Having regard to the authorities on consistency in decision making (summarised in Bloor at principle 7 in [19]), her reasoning was inadequate, and left SODC substantially prejudiced, given the importance of the issues to the determination of housing applications in its area.
- On Ground 3 Mr Westmoreland Smith argued that the Inspector had erred in concluding at [60] that the harm to the plan led system was overridden by the silence of the development plan on the issue of allocations to the larger villages in South Oxfordshire. While SODC did not argue an objection on the grounds of prematurity, recognising that it was a case that was unlikely to succeed given the fact that the emerging Local Plan was not at an advanced stage, the impact on the plan process was still a material consideration which would weigh negatively in the planning balance in the absence of a "formal" prematurity objection.
- The harm relied on was that the site would take 75% of the figure "the parties agreed would be needed at Chinnor (at least 160)" (the phrase in the skeleton at [66]) which should be examined through the local plan process. That conflicted with Policy CSR1 but also the first core principle in NPPF (at paragraph [17]) that the planning system should be genuinely plan led. Her reasoning at [60] of the Decision Letter had no intelligible or adequate reasons, or was irrational.
- As to Ground 4 the Inspector had misunderstood Policy CSC1 of the Core Strategy. It was wrong of her to conclude at [60] (and [36] in the TW decision) that there was compliance with CSC1. But the allocations in the Core Strategy did not take effect until 2017-18 at the earliest, and the Goats Gambol Inspector (a decision published on 17th June 2015 about land at Woodcote) had concluded that there was a 5 year supply. The policy applied if there were not 615 houses delivered by 2021/2.
- As to Ground 5 the SODC case was that neither Appellant had control over the land in between the two sites, nor any mechanism to control it. Therefore her conclusion at [21] was flawed. Further, it was unclear how the Inspector could reach her conclusion at [17] given that the proposed development was one for housing.
- This occurred before Mr Westmoreland Smith had concluded his arguments concerning CUK. As I have indicated above, at a late stage (the afternoon before the hearing) Mr Pereira QC served a copy of the "Housing Supply Statement" issued by SODC on 28th April 2016. It referred to two further decision letters relating to land at Wallingford and another site in Chinnor, where the Inspectors had concluded that the housing figures to be used should be taken from the SHMA and not the lower figures in the Core Strategy, which SODC now stated should be given significantly less weight in decision making. However it also recorded that the Inspectors had supported the policy of disaggregation. The Chinnor decision (an outline application for 89 dwellings) accepted that the SHMA figures were to be preferred. He applied the "out of date" test in NPPF [14] and then considered whether the adverse impacts on the countryside significantly and demonstrably outweighed the benefits. He considered that policy CSR1 was out of date, thereby reducing the weight to be attached to it. The Council argued that Chinnor was becoming a "honeypot" for unplanned developments. However he noted that the Core Strategy did not set an appropriate level of development for each village, and that there was no evidence that development at Chinnor was any less "sustainable" than at the other larger villages. He found no inherent conflict between the appeal proposal and CSH1 . He noted that, albeit not making it an explicit reason for refusal, SODC was arguing that granting permission for the appeal would be contrary to its ability to make considered plans for infrastructure delivery, but held that there was no evidence to support the objection.
- I have noted already that Mr Westmoreland Smith also indicated that a factor leading to the change of heart on the TW site was that if the policies were held to be out of date, NPPF [14] was engaged.
- Miss Cook made the following submissions. While accepting the principles of decision making summarised by Lindblom J (as he then was) at Bloor [19] her skeleton also referred to Lindblom LJ's judgment in Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168 at [24] on how one interprets a policy statement such as NPPF:
- It referred also to the passages in Bloor on NPPF which are set out above. She pointed out also that in Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 Lindblom J said at [71] that:
- The skeleton referred also to Patterson J saying in Dartford BC v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) at [54] that the question whether a development proposal is sustainable in terms of NPPF [14] is one of planning judgment, where, having evaluated the three aspects of sustainable development, one considers whether the positive attributes outweigh the negative.
- Miss Cook's skeleton drew attention to the encouragement which NPPF gives to housing developments, noting that [47] has as its objective "to boost the supply of housing" by the mechanisms there set out. She noted also that NPPF [49] states that housing applications should be considered in the context of the presumption in favour of sustainable development. She also drew attention to paragraphs [14], [159] [196] and [216].
- Her skeleton took me also to the exchange of closing submissions at the inquiry. It is not necessary to set them out here.
- As to Ground 1 (the "silence" issue) she submitted that the Inspector had adopted the test verbatim from Bloor at [50] in her relevant paragraph [36]. Silence will be either a matter of fact or a matter of construction, or both, as stated in Bloor at [45]. CUK's case was not that there was no Development Plan policy at all, but was more nuanced. It chimed with the passage in Bloor at [50] that the answer to the question of whether a plan is silent may not be clear cut. What was significant was whether there was an absence of relevant policy which enable the Inspector to judge whether the proposal was acceptable or unacceptable.
- It was a matter for the Inspector's planning judgment whether policies G2 and G4 in the Local Plan were sufficiently relevant. The Inspector concluded that they were not, because they predated the Core Strategy, and did not help resolve the tension between development on a green field site and accommodating the development the Core Strategy foresaw in Chinnor.
- The "silence" criterion can also extend to a draft development plan; see Bloor at [47] and Holgate J in Woodcock Holdings v Secretary of State for Communities and Local Government [2015] EWHC 1173 at [114] in the context of NPPF [49].
- Given the above, the Inspector was not required to determine the issue of the 5 year supply.
- As to Ground 2 (Inconsistency), it was important to note that in the TW case, that was a case where she concluded that while there would be conflict with Policy CSR1 , limited weight should attach to that. She had also found that there was a policy vacuum. She also found that the proposal would have a beneficial effect on the supply of housing, and that the benefits outweighed the harm, which made it sustainable development in accordance with Policy CS1. It was therefore unnecessary for her to approach the case on the basis of the test in NPPF [14] on abandoned/silent/up to date. Pursuing NPPF [14] would have been an academic exercise.
- As to Ground 3 this was a matter of planning judgment for the Inspector. She recorded the SODC case on the plan led system at [60] and gave reasons for not giving it weight. The harm to the plan led system was caused by SODC abandoning its DPD, which was the way in the plan led system would allocate sites.
- As to Ground 4 (the CSC1 point) the policy was based upon a delivery mechanism of the DPD, which SODC had abandoned. The Inspector's approach in paragraph 60 cannot be faulted. She was exercising her planning judgment that once the DPD was abandoned, it would comply with Policy CSC1. The grant of permission was "another mechanism" in terms of CSC1.
- As to Ground 5 it cannot be argued that the presence of the land in between the two sites was immaterial. Her conclusions on the landscape issues are through, detailed and carefully set out.
- Before turning to the particular arguments raised in the case, it is appropriate to consider the approach adopted by the Inspector. She did so as follows:
- Subject to consideration of the points taken on behalf of SODC, her conclusions are comprehensive, well reasoned and address the issues raised before her at the inquiry.
- This case is yet another to come before the Planning Court in which the meaning and application of NPPF must be addressed, as well as its effect (if any) on decision making for the purposes of decisions made under s 77 or 78 of TCPA 1990. Fortunately, since these challenges were made, the Court of Appeal has stilled some of the arguments, through the judgment of Lindblom LJ in Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168, to which I shall make substantial reference presently.
- But given some of the arguments that were deployed in this case, it is necessary to refer to some matters of first principle, which largely follow the list given by Lindblom J in Bloor at [19]. I have added to that list only because some matters not of moment in that decision were more relevant in this one.
- The list given by Lindblom LJ is:
- I would add the following, given the issues in this case: an Inspector appointed to conduct a planning appeal must:
- It follows from the above that NPPF was very relevant to the determination of the appeal. But it was so because, as a statement of Government Policy, it was a material consideration; no more and no less. While the arguments there were directed towards paragraph 49 of NPPF, it is important to note what Lindblom LJ said in Suffolk Coastal at [42] and [43] about NPPF generally:
- I refer also to paragraphs [46] [47] which deal with what must now be seen as the inappropriate application and consideration of NPPF, including to some extent judicially:
- I respectfully suggested in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin) that Suffolk Coastal has laid to rest several disputes about the interpretation of NPPF, both as to the particular paragraphs it addressed, but generally. Before Suffolk Coastal it had been striking that NPPF, a policy document, could sometimes have been approached as if it were a statute, and as importantly, as if it did away with the importance of a decision maker taking a properly nuanced decision in the round, having regard to the development plan (and its statutory significance) and to all material considerations. In particular, I would emphasise this passage in Lindblom LJ's judgment at [42]-[43], which restates the role of a policy document, and just as importantly how it is to be interpreted and applied. NPPF is not to be used to obstruct sensible decision making. It is there as policy guidance to be had regard to in that process, not to supplant it.
- I turn next to the interpretation and application of paragraph [14] of NPPF. Subject to the comments I make below, I respectfully follow and adopt the observations of Lindblom J (as he then was) in Bloor at [44]-[58]. The additional comments I make are to address the submissions made to me that a case on "silence" was to be distinguished from a case on whether the development plan was "out of date." I would make four points (1)-(4).
- (1) While it is correct that the second and third of the three possible shortcomings identified in NPPF (the absence of a development plan, its silence, or its relevant policies having become out of date) are not the same, the latter two arise from the same issue, namely the degree of weight that can be attached to the policies in the development plan, which is of course essential given its status in s 70 TCPA 1990 and s 38(6) PCPA 2004. As Lindblom J pointed out at paragraph [50] of Bloor:
- The reason in this context why an out of date policy can carry less or no weight is that circumstances have changed since its adoption, which can make it less relevant. A policy may be relevant, but the weight it carries is purely for the decision maker, as is made clear in Suffolk Coastal at [46]-[47]
- (2) As I understand Bloor, Lindblom J was not seeking to suggest that the distinct provenances of the second and third shortcomings prevented overlap in their application in an individual case. For in the final analysis, the question for the decision maker is the same whether arriving at it via one route or the other, and comes in two parts: (1) does this development plan contain a body of policy relevant to the proposal being considered, and (2) is that body of policy sufficient to enable the development to be judged acceptable or unacceptable in principle? The first question involves an identification of the policies in question, and their correct interpretation; the second involves the exercise of planning judgment on the practical effect of that body of policy on the making of the decision in issue.
- (3) It follows also from the fact that the decision maker must make a planning judgment that, even if one is confined to arguing the "silence" test, that what matters is not simply whether the plan contains a policy which can be looked at to determine the question posed in Bloor at [50] and repeated in the last sentence of my paragraph [91] above: for its sufficiency at the time the decision is being made is an essential issue, and that involves the making of a qualitative planning judgment. I emphasise that the judgment to be made is at the time of the decision. A Development Plan may not have been "silent" when adopted, but has become so.
- (4) In the case of this Development Plan, the mechanism by which its housing requirement figures were intended to be translated into actual allocations was the DPD, which SODC had since abandoned. The question "how much housing does the Development Plan intend should be allocated in the period x to y" is not the same question as "where does the Plan say that that housing could or should be built?" In some cases, it can be the second question that matters. Whether it does so depends on the circumstances and is a matter for the planning judgment of the decision maker.
- I turn to the instant case in the light of Lindblom J's judgment in Bloor and of those points (1)-(4). Firstly, I reject the submission for SODC that there is in this case a real distinction to be drawn between the case which argued that the policies in the development plan were silent because there was no DPD, and the case that argued that the plan was out of date because there was no DPD. Such a distinction may have a semantic justification, but not one founded in reality.
- Secondly, Mr Westmoreland Smith's submissions also sought to persuade me that the existence of the polices to which he referred was enough to prevent the plan being silent. But that question is one which involves questions of weight, and in particular the question of the sufficiency of the policy/policies to enable consideration of the acceptability of a development, as per Bloor at [50].
- Thirdly, the Inspector was dealing with:
- The Inspector considered carefully the policies in the Development Plan on housing at [32]- [34]. This was a case where it was her planning judgment that it was the answer to the second question above which mattered. The Inspector found, as she was entitled to, that Local Plan policies G2 and G4 in their amended form would not inform the answering of that question, for the reasons which she gave, namely that policies G2 and G4 were based on a different development plan context and on a different level of growth to that anticipated in the Core Strategy. Thus, she found that there was effective silence on the critical issue. That was a planning judgment which she was entitled to form.
- Her conclusion at [34] that:
- Finally on this issue, even if I am wrong about the nature of the test of "silence" it is quite plain on the facts of this case that the relevant policies in the Development Plan were out of date, given the abandonment of the mechanism by which sites were to be allocated. Policies G2 and G4 in the Local Plan were out of date for the reasons given by the Inspector. It cannot seriously be argued that SODC suffered any prejudice, let alone any substantial prejudice, through what was at worst a mistake in the label to be attached to the reason why the Development Plan polices carried little weight.
- That is enough to dispose of Ground 1. However I should also deal with Mr Westmoreland Smith's argument that the Inspector should have reached conclusions on the issue over the 5 year supply. The Inspector concluded at [57] that the provision of housing was a significant benefit in any event. It was not necessary for her to determine whether or not there was a 5 year supply. In Dartford [2016] EWHC 649 I pointed out at [44]-[45] that it is not necessary to conduct a full analysis of requirements and supply in every case. Whether one has to do so depends on the circumstances. Here, there was agreement that housing land should be identified in Chinnor [40], and she had concluded as a matter of planning judgment (in a passage not challenged in these proceedings) that the proposal would be beneficial in terms of its effect on housing provision in quantitative [40] and qualitative [59] terms, and have some environmental and accessibility benefits [61] and would constitute sustainable development [62].
- In my judgment it was not necessary for her to determine the 5 year supply issue. There is nothing in NPPF or in the Core Strategy which suggests that providing more homes than required to provide a 5 year supply is inherently objectionable.
- As to Ground 2, it is true that the Inspector's approaches differed in the two Decision Letters. That is unsurprising because the two Appellants argued their cases in different ways. I have already made some comment upon the task for the Inspector being made more difficult by the way in which the Inspectorate allocated the appeals. But what matters is not whether the approaches were different in some respects, but whether the adoption of the TW approach could have led to any different outcome in the CUK appeal. In reality, her approach was very much the same on the central issues. As at the CUK site, in the TW case she found that the proposal accorded with Core Strategy Policies CSS1and CSH1 , and noted that both parties accepted that some development would have to take place on greenfield sites at Chinnor [TW 35]. As the DPD had been abandoned, the proposal complied with CSC1 [TW 36]. Given also the abandonment of the DPD, reduced weight attached to CSR1, but she considered whether there were other considerations that outweighed that conflict [TW 37]. It is correct that she looked at 5 factors (TW [31]- [37]) but she went on to say that in any event there was a policy vacuum with regard to the allocation of sites in the larger villages. In other words, she took exactly the same view, as a matter of planning judgment, as she did in the CUK decision. At best, all that this argument of Mr Westmoreland achieves is to show that there were more reasons to give less weight to CSR1 than she had set out in the CUK decision letter. In reality, this argument by Mr Westmoreland Smith is a purely technical one. The types of conflict between decisions discussed in the authorities cited by Lindblom J in Bloor at paragraph 19 (7) (Fox Strategic Land and Property Ltd v SSCLG [2012] EWCA Civ 1198 [2013] 1 P & CR 6 and N Wiltshire DC v SSE [1992] 65 P & CR 137) were of an entirely more substantial and direct kind, where the other decision which was material had been to the opposite effect. There was nothing in her decision on the TW appeal which, had she adopted it in the CUK appeal, could have led to a different outcome.
- It follows also that I do not accept that the Secretary of State's reasons for not contesting this claim are well founded. It is to be noted that she had also decided not to resist the SODC claim against TW, which SODC abandoned during the hearing.
- I turn now to Grounds 3 and 4, which can be taken together. The argument of SODC about the plan led system may have arisen as it strove to avoid making an objection on the grounds of prematurity, but that is it actually what it was. It was an argument that in a plan led system the grant of permission through development control on an unallocated site is undesirable. In the TW decision (TW [34]) the Inspector referred to Planning Practice Guidance, which is the web based guidance given by the Department for Communities and Local Government. In this context of what it sets out on this issue, it is to be regarded, for the purposes of the Gransden and Horsham test, as policy in the same sense as that which appears in NPPF. It states at Paragraph 014 reference ID 21b-014-20140306 that:
- That approach reflects long standing national policy- see for example the former Planning Policy Statement 3 at paragraph 72. It has in my recollection a policy to like effect has been a feature of national planning policy since at least 1980. The issue to be addressed is whether one is dealing with a case where making a decision in advance of the new plan coming forward to adoption would cause harm in planning terms.
- The fact is that the Planning Code of TCPA 1990 and related legislation permit development to occur following a grant of permission on sites which are not allocated in the Development Plan. There is nothing in TCPA 1990 or PCPA 2004 which gives any particular status to emerging plans in development control. In s 70 terms, their relevance is as a material consideration. So one looks to policy on the topic. NPPF emphasises the importance of planning being "genuinely plan led" (NPPF [17]) but it also encourages the grant of permission to sustainable housing development (for example see [14] and [49]). It follows that there are often cases where a planning application has to be considered in a location where there are proposals to bring forward a plan. Whether the approval of the application would cause harm to the process of development plan preparation is then a matter of planning judgment for the decision maker. Such judgments are familiar ones, and have long been made by Inspectors and planning authorities.
- It was thus a matter for the planning judgment of this Inspector whether there would be harm to the plan led process which weighed against the grant of permission. She dealt with this matter at [36]. Having noted that the Council advanced no prematurity objection, she stated that:
- As to the first point, she did no more than state the effect of NPPF paragraph [14]. As to the second and third points, subject to the accuracy of her interpretation of policy CSC1, they were a matter for her planning judgment. In my judgment, Policy CSC1 was cited accurately by her. This is a case where allocated development sites were not coming forward in a timely manner, because SODC had abandoned the mechanism for doing so. While Table 18.1 referred to "projected delivery" in the period 2017/8 to 2021/2022 (thus being within the 5 year period relevant to this application anyway) it was not the policy that sites could not come forward earlier (my emphasis). Policy CSC1 states "Sites are anticipated to be developed in the timescales set out in Table 18.1" (my emphasis). Policy CSH1, which deals with the amount and distribution of housing contains no such qualification. It refers only to tables 7.1, 7.2 and 7.3, which do not limit the development in larger villages to the period 2017 to 2022. So, she was quite entitled to form the judgment that the development plan policy on distribution was that in CSH1 , and not to treat Table 18.1 as limiting the temporal distribution.
- That left the question of mechanism. A planning decision (whether under s 70, or on an appeal under s 78) is undoubtedly an "other mechanism" within the terms of Policy CSC1 (iii). It follows that there is nothing in her planning judgment which can justify the criticism made of her by SODC.
- As to Ground 5, this is in reality a merits argument dressed up as a supposed point of law. The Inspector went into considerable detail about the effect of development on the site at paragraphs [14]- [25] and [28]- [31]. The issue of the cumulative effect of the two developments is dealt with at [24]. The effect of the presence of the field between the two sites is but one of the series of factors listed by her. She was quite entitled to refer to its presence. If SODC had been arguing that it would be developed if both sites were granted consent, that could have required some comment from her, but I note that the point taken by SODC appeared nowhere in the closing submissions made on its behalf by Mr Westmoreland Smith, a copy of which was given to the Court.
- I have passed comment on the difficulty caused the Inspector by her being expected to conduct two appeals on closely related sites in such a way that she had to write two decision letters after two inquiries. Despite that unnecessary obstacle to sensible decision making, in my judgment this Inspector produced a clear well reasoned decision, which addressed all relevant matters properly.
- This claim is dismissed on all grounds.
MR JUSTICE GILBART
| TCPA 1990 | Town and Country Planning Act 1990 |
| LBCAA 1990 | Planning (Listed Buildings and Conservation Areas) Act 1990 |
| PCPA 2004 | Planning and Compulsory Purchase Act 2004 |
| NPPF | National Planning Policy Framework (March 2012) |
| LPA | Local Planning Authority |
| SSCLG | Secretary of State for Communities and Local Government |
| SODC | South Oxfordshire District Council |
| CUK | Cemex UK Properties Limited |
| TW | Taylor Wimpey UK Properties Limited |
| SHMA | Strategic Housing Market Assessment |
Introduction
i) The appeal sitesii) The reasons for refusal
iii) The development plan and emerging planning policy
iv) The NPPF
v) The argument on housing land, and the positions of the parties: SODC, CUK and TW
vi) The TW decision letter
vii) The CUK decision letter
viii) The case for SODC
ix) The case for CUK
x) The position of the First Defendant Secretary of State
xi) The abandonment of the SODC case against TW
xii) Discussion and Conclusions.
(i) The appeal sites
"one of our largest villages .close to the boundary with Wycombe District .. The village has some attractive and historic buildings mainly in the central area. Much housing has also taken place in the post war era but the village is compact and very walkable with a good range of facilities Around 180 new homes have recently been completed in Chinnor on Old Kiln Lakes on the site of the former cement works ."
(ii) The reasons for refusal
(iii) The development plan and emerging planning policy
i) The "South Oxfordshire Core Strategy" of 2012, which dealt, inter alia, with housing provision for the period from 2012 to 2027. It also dealt with other policies to which I shall refer presently;ii) The "South Oxfordshire Local Plan 2011." That had been adopted in its original form in January 2006, but upon the adoption of the Core Strategy, several passages were literally struck through, so that it is now referred to as the "Strike-through version on adoption of Core Strategy December 2012." It will be necessary in due course to consider both the extant passages relevant to this matter, but also those that have been excised.
"4. The overall strategy4.1. The strategy sets out how we will deliver the vision and objectives. It identifies the role that Didcot, the market towns, the villages and the countryside will play in the future and shows how much new development will be provided. It takes into account the changes that will take place in the area around the district and wider trends and changes in society and the environment. It shows how we will work in partnership to deliver the strategy with those responsible for key services. These include healthcare, schools transport, water supply and community safety and with other key stakeholders such as affordable housing providers.
4.2.
4.3. .
4.4. The strategy provides a framework for the area to enhance its strengths, to allow the communities within it to maintain their individuality and character whilst accommodating development that delivers the vision.
The structure of the strategy
4.5. We have translated the vision and objectives into a number of inter-related spatial themes:
"A strong network of settlements
Policy CSS1 The overall strategy
Proposals for development in South Oxfordshire should be consistent with the overall strategy of:
(i) focusing major new development at the growth point of Didcot so the town can play an enhanced role in providing homes, jobs and services with improved transport connectivity;
(ii) supporting the roles of Henley, Thame and Wallingford by regenerating their town centres through measures that include environmental improvements and mixed-use developments
and by providing new houses, employment, services and infrastructure;
(iii) supporting and enhancing the larger villages of Berinsfield, Benson, Chalgrove, Chinnor, Cholsey, Crowmarsh Gifford, Goring, Nettlebed, Sonning Common, Watlington, Wheatley and Woodcote as local service centres;
(iv) supporting other villages in the rest of the district by allowing for limited amounts of housing and employment and by the provision and retention of services; and
(v) outside the towns and villages, and other major developed sites, any change will need to relate to very specific needs such as those of the agricultural industry or enhancement of the environment."
| Completed as at March 2012 | Committed as at March 2012 | Additional in this strategy | |
| Didcot | 322 | 3661 | 2330 |
| Henley | 276 | 115 | 400 |
| Thame | 290 | 66 | 775 |
| Wallingford | 241 | 28 | 555 |
| Rural Areas | 686 | 758 | 1154 |
| TOTALS | 1815 | 4628 | 5214 |
"7.9 Our overall strategy for a strong network of settlements throughout the district, as explained in Section 4, has shaped our housing distribution strategy. We aim to focus a large proportion of new development at the growth point of Didcot. The number of houses allocated to Didcot is ring-fenced to this settlement as this level of housing growth is closely linked to planned economic growth within Science Vale UK, our bid for transport infrastructure in the Didcot area, our plans for the expansion of Didcot town centre and Didcot's designation as a New Growth Point.
7.10. Outside Didcot, the rest of the district will be a single area for housing land supply. About 60% (1,730) of the balance of the total of new housing allocations to be provided through this strategy in that area is directed to the market towns of Henley, Thame and Wallingford. A high proportion of South Oxfordshire residents (about 60%) currently live in rural areas, so the urban focus of the strategy, directing new allocations primarily towards Didcot and the other three towns will significantly rebalance the present urban/rural mix in South Oxfordshire, especially taken in context with the substantial number of existing commitments at Didcot (3,780). However, about 40% of the balance of new allocations to be made outside Didcot (1,154 homes), or about 28% of new allocations including those at Didcot (1,154/4,060) is directed towards the 12 larger villages because it is an important aim of this strategy to provide growth to support the maintenance of services and facilities at this identified network of key rural centres.
7.11. The starting point for the strategy was to distribute the homes allocated to Henley, Thame and Wallingford generally in proportion to their relative sizes (40% / 35% / 25%). However, a cap of 400 has been imposed at Henley because of the lack of identifiable certain capacity for physical growth due to constraints posed by the Thames flood plain and the Chilterns Area of Outstanding Natural Beauty. This results in the diversion of a total of just under 350 or so homes proportionately to Thame and Wallingford. The distribution of the growth allocated to the larger villages will be decided through the Site Allocations DPD on the basis of the principles set out in paragraph 7.20.
7.12. The overall number of houses to allocate to Didcot and the rest of the district is shown in Table 7.1 and on Map 7.1.
7.13. The base date of our housing supply period is 2006. Some of the housing needed has been built already and a number of other deliverable sites have been identified through planning permissions, allocations in the South Oxfordshire Local Plan 2011 and sites within the built-up area of existing settlements shown in our Strategic Housing Land Table 7.1 and Map 7.1 show how much land we have already identified and the amount we need to identify in this plan."
| 2006 to 2027 target | Completions 2006-12, existing allocations and identified deliverable sites | Number of dwellings allocated in this strategy | |
| Didcot | 6300 | 3983 | 2330 |
| Rest of the District | 5187 | 2460 | 2884 |
| Total | 11487 | 6443 | 5214 |
"Policy CSH1 Amount and distribution of housing
Planning permission will be granted to meet housing requirements in Table 7.1 in accordance with Tables 7.2 to 7.3."
"These are not strategic allocations and will be addressed in our Site Allocations DPD" (Development Plan Document)"
The plan then includes table 7.3, which contains the following (I have totalled the amounts within the table to save space) followed by an important asterisked note:
Table 7.3
| REST OF THE DISTRICT 2006-2027 | Requirement | Supply |
| Requirement Target 2006-2026 (SE Plan carried forward) Additional housing requirement 2026-2027 |
4940 247 |
|
| Supply Completions 2006/07-2011/12 Existing strategic sites in Local Plan (List including 77 at Chinnor Cement Works) New strategic allocations in this core strategy (List of three) Sites to be allocated in the Site Allocations DPD for the larger villages (List including) Chinnor |
1493 967 1730 1154* |
|
| Total 2006 to 2027 | 5187 | 5344 |
* These allocations should be divided so that at least 500 are provided at the Larger Villages in the central Oxfordshire Area ." which did not include Chinnor.
"In order to contribute to the present and future economic, environmental and social sustainability of the villages, housing will be allowed where the scale and nature of development is: an allocation, or an infill site without limit."
"Infill site" is defined as the filling of a small gap in an otherwise built-up frontage or on others sites within sites where the site is closely surrounded by buildings [13.10]. The Policy continues:
"All development should respect national designations such as Green Belt and should conserve and enhance the natural beauty of the Areas of Outstanding Natural Beauty. Suitably designed and located development at an appropriate scale that facilitates the economic and social well-being of such areas, especially in the Larger Villages in the Areas of Outstanding Natural Beauty will be supported. This includes the provision of adequate housing to meet identified local needs.
Local character and distinctiveness will be protected and the requirements of relevant development plan policies will be met.
Redevelopment proposals in all categories of settlement may be acceptable but will be considered on a case by case basis through the development management process in line with other policies in the Development Plan."
"many proposals need developing through more detailed policy documents. These comprise:" (a list then follows, which includes)
"Site Allocations DPD and Neighbourhood Plans which will allocate sites for the uses set out in this strategy throughout the rest of the District."
"Policy CSC1 Delivery and Contingency
Sites are anticipated to be developed in the timescales set out in Table 18.1.
If sites or other policies are not delivered in accordance with Tables 18.1 and the housing trajectories, the contingency measures set out in Table 18.2 will apply.
If the Authority's Monitoring Report shows that allocated development sites and/or neighbourhood plans are not coming forward in a timely manner, we will consider:
(i) seeking alternative sources of funding if lack of infrastructure is delaying development
(ii) bringing forward sites anticipated to come on stream later in the plan process
(iii) identifying alternative deliverable site(s) through a plan or other mechanism in general accordance with the distribution strategy of this plan as set out in Tables 7.1, 7.2 and 7.3."
i) For CSS1(the overall strategy) reference is simply made to "other specific policies."
ii) For CSH1and CSR1 it says the following of relevance:
| CSH1 Amount and Distribution of Housing | Delivery Mechanism | Targets | Action if not on Target |
| Strategic allocations in this strategy, existing permissions and allocations, Site Allocations DPD, . Sites coming forward through the development management process |
Meet the targets in the Core Strategy Maintain a 5 year supply of deliverable sites in each policy area Deliver according to programme for strategic sites in this strategy and that to be included in the Site Allocations DPD . |
Implement the measures detailed in CSC1 |
|
| CSR1 Housing in Villages | Development management Process Neighbourhood Plans |
The nature and scale of development in villages to accord with the category of settlements | AMR (Annual Monitoring Report) will contain analysis of why completions are not in accordance with the settlement strategy. Consider allocating land for housing |
"Protection and enhancement of the environment
Policy G2
The district's countryside, settlements and environmental resources will be protected from adverse developments [and opportunities sought to enhance the environment wherever they arise].
2.12 This reflects the Council's aim to balance the protection and enhancement of the district's resources, whilst meeting development needs [in accordance with Policy G1 and the Structure Plan requirement.]
Development in the countryside and on the edge of settlements
Policy G4 The need to protect the countryside for its own sake is an important consideration when assessing proposals for development. [Unless permitted by other policies in the plan, new built development in the countryside, in the open gaps between settlements and on the edge of settlements where the built-up area would be extended, will not normally be permitted, except for agriculture and forestry. ]
2.14 [This policy seeks to prevent development in the countryside, ribbon development on roads extending away from settlements and unplanned expansion of settlements beyond their existing built-up area. This policy also reflects the Government's overall aim in PPS7 which is to protect the countryside for the sake of its intrinsic character and beauty, the diversity of its landscapes, heritage and wildlife, the wealth of its natural resources and so it may be enjoyed by all. When considering proposals for development the Council will give high priority to retaining the open and rural character of the area, and the countryside generally. In the period to 2011 the strategic development requirements in South Oxfordshire can be met in an acceptable way by the policies and proposals in this plan. The Council considers that in accordance with PPG3 there is therefore no need to contemplate urban expansions or development in the countryside, other than in the agreed case of Didcot.]"
"The landscape setting of settlements
Policy C4 Development which would damage the attractive landscape setting of the settlements of the district will not be permitted. The effect of any proposal on important local landscape features which contribute to the visual and historic character and appearance of a settlement will be considered.
3.16 The relationship between settlements and their surrounding countryside is a significant element in the character of the area. The links and contrasts between towns and villages and their rural surroundings were often important historically, and the attractive juxtaposition of the two elements is the quintessence of English rural landscapes. The countryside around towns and villages is also highly valued, both visually and for informal recreation. The Council will seek to ensure that the landscape setting of settlements is protected from damaging development. In assessing proposals for development which would affect the landscape setting of a settlement, reference will be made to the South Oxfordshire Landscape Assessment"
"Good design and local distinctiveness
Policy D1
The principles of good design and the protection and reinforcement of local distinctiveness should be taken into account in all new development through:
(i) the provision of a clear structure of spaces;
(ii) respecting existing settlement patterns;
(iii) providing for a choice of routes and transport modes to, from and within the development;
(iv) providing a devel opment that users find easy to understand through the use of landmarks, vistas and focal points;
(v) providing landscape structure as a framework for new development;
(vi) respecting the character of the existing landscape;
(vii) respecting distinctive settlement types and their character;
(viii) providing good quality site and building design and appropriate materials; and
(ix) providing well-designed external areas."
"Using a proportionate evidence base
158. Each local planning authority should ensure that the Local Plan is based on adequate, up-to-date and relevant evidence about the economic, social and environmental characteristics and prospects of the area. Local planning authorities should ensure that their assessment of and strategies for housing, employment and other uses are integrated, and that they take full account of relevant market and economic signals.
Housing
159. Local planning authorities should have a clear understanding of housing needs in their area. They should:
? prepare a Strategic Housing Market Assessment to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries. The Strategic Housing Market Assessment should identify the scale and mix of housing and the range of tenures that the local population is likely to need over the plan period which:
meets household and population projections, taking account of migration and demographic change;
addresses the need for all types of housing, including affordable housing and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes);
and
caters for housing demand and the scale of housing supply necessary to
meet this demand;
? prepare a Strategic Housing Land Availability Assessment to establish
realistic assumptions about the availability, suitability and the likely
economic viability of land to meet the identified need for housing over the plan period."
"Core Strategy housing policies are given significantly less weight in our decision making. Sustainable development should now be permitted unless there is planning harm that outweighs the benefit of providing new housing .We will strongly resist applications which do not respect our distribution strategy across the district .or don't (sic) represent sustainable development."
It referred to its distribution strategy as focussing development in the more sustainable towns and larger villages. I shall say more about the statement below (at paragraph [65]).
(iv) The National Planning Policy Framework
"6. The purpose of the planning system is to contribute to the achievement of sustainable development. The policies in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system.
7. There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
? an economic role contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;
? a social role supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community's needs and support its health, social and cultural well-being; and
? an environmental role contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy."
"12. This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.
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 through both plan-making and decision-taking.
For plan-making this means that:
? local planning authorities should positively seek opportunities to meet the
development needs of their area;
? Local Plans should meet objectively assessed needs, with sufficient
flexibility to adapt to rapid change, 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." (A footnote (9) gives as examples policies relating to Habitat Directives, designated Sites of Special Scientific Interest, designated Green Belts, Areas of Outstanding Natural Beauty, Heritage Coasts, National Parks, designated heritage assets or areas at risk of flooding or coastal erosion)
"For decision-taking this means: ("unless material considerations indicate otherwise" appears in a footnote)
? 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. (Reference is again made to footnote (9))
15. Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally."
"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."
(v) The argument on housing land, and the positions of the parties: SODC, CUK and TW
i) Government policy requires LPAs to "boost significantly their supply of housing;"ii) Chinnor will have to accommodate at least 159/160 houses to which the TW scheme would contribute;
iii) the accommodation of that figure will require the release of greenfield sites;
iv) the TW site was in a sustainable location, had been identified as suitable and available, subject to the Local Plan process, and was not subject to any environmental or landscape designation or in the Green Belt.
v) the proper approach to housing policy in SODC was to accept the disaggregated approach;
vi) if the development plan was followed, there was a very healthy 5 year supply;
vii) no free standing prematurity argument was being put forward, but the choice of sites for the 160 houses (at least) required in Chinnor should be made through the Local Plan;
viii) there was a 4 year supply in Didcot, and a 9 year supply in the rest of the SODC area;
ix) the figures to use for the 5 year supply were those in the Core Strategy, and not in the SHMA;
x) the policies in the Core strategy were not silent, absent or out of date (the test in NPPF paragraph [14]);
xi) paragraph [14] only applied to sustainable development;
xii) if the test in paragraph 14 was met, SODC conceded that the disbenefits of the development would be significantly and demonstrably outweighed by the significant benefits.
i) the development would provide housing of an amount that helps meet identified needs in a sustainable location in accordance with the strategy of the Development Plan. It was allocated for development in the emerging plan. There were no objections on any grounds relating to amenity, conservation, design, highways or infrastructure;
ii) the proposal complied with the Development Plan. But those policies were out of date in any event, so that the presumption in paragraph [14] of NPPF applied;
iii) the LPA conceded that if the Inspector considered that the policies were out of date, she should allow their appeal;
iv) the grant of planning permission would not harm the Development Plan's strategy of delivering homes at Didcot;
v) given the fact that growth was expected at Chinnor, and that the site had been shortlisted, the claim of harm to the strategy was misplaced;
vi) the site allocations DPD had been abandoned, and therefore the Core Strategy identifying allocations through a DPD could not be complied with;
vii) whatever the position on 5 year supply there was no sustainable objection to development;
viii) the Core Strategy policies were out of date because there was a lack of a 5 year supply based upon the Core Strategy and an assessment of the existing supply, and secondly because Core Strategy figures were out of date given the findings of the SHMA;
ix) the TW approach accorded with the conclusions of another Inspector in an appeal about a site at Shiplake;
x) SODC was in the position of urging other Oxfordshire LPAs to apply the results of the SHMA, and to hold that their development plans were out of date as a result;
xi) there were also technical and site specific arguments on the calculation of supply which are not relevant here.
i) points (i) (iv) of those it took at the TW inquiry;ii) the only objections to the development were on landscape grounds and on in relation to the Oakley Conservation Area;
iii) the importance of the 5 year supply issue could not be over emphasised. The disaggregated approach was the cornerstone of the entire spatial strategy for South Oxfordshire;
iv) recent Decision Letters had failed to deal with the issue consistently or appropriately. The decisions differ on the approach to be adopted. This case was one where the 5 year supply was one of only two issues between the parties, and it should be addressed comprehensively;
v) the issues raised in this case are important. There is a need to resolve the tension between the need for housing and the primacy of the development plan and the plan led system;
vi) there was a 5 year housing land supply;
vii) SODC has ensured that its Core Strategy was up to date by considering the evidence of the recent SHMA;
viii) there were conflicts with the core strategy and the local plan. The site's development was also objectionable on landscape grounds;
ix) on housing figures, the Core Strategy should be adhered to. Those in the SHMA had not been tested;
x) a balance must be struck between keeping plans up to date and maintaining the plan led system;
xi) the disaggregated approach (i.e. looking at Didcot and the rest of the SODC area separately) should be adopted. The policies here are relevant in terms of paragraph [49] of NPPF:
xii) the development was not sustainable because of its effect on the countryside, and because it would undermine the plan led system;
xiii) NPPF paragraph [14] did not apply. The policies were neither silent, absent nor out of date. In any event paragraph [14] only applies to sustainable development.
i) SODC accepted in evidence that there would be greenfield development at Chinnor;ii) the development would be acceptable in landscape terms;
iii) there is no plan allocating land in the larger villages. The Development Plan is silent on where and how much development there should be at Chinnor;
iv) unlike the situation in Bloor Homes v Secretary of State for Communities and Local Government [2014] EWHC 754 (Lindblom J), there are no policies concerning green wedges, nor any proposing particular amounts which should be allocated to the larger villages;
v) an Inspector at an appeal in Benson had regard the policies as "silent" in terms of NPPF [14];
vi) the housing figures in the Core Strategy do not represent a full objectively assessed housing need (FOAN) as required by NPPF [47]. Indeed SODC expressly decided to continue with the numbers included in the old SE Regional Plan. Two Oxfordshire Districts (Vale of White Horse and Cherwell) were now using the recent SHMA to assess housing neds and calculate the required 5 year supply;
vii) it would be wrong to disaggregate Didcot from SODC when it is not its own Housing Market Area. There has been no challenge to the decision of the Inspector at the Shiplake inquiry that one should not disaggregate the figures;
viii) there was only a 4.4 year supply , using the "Sedgefield" approach with the Core Strategy figures. It follows that the Plan is out of date in accordance with NPPF paragraph [49];
ix) development on the site would be sustainable.
(vi) The TW decision letter
" The effect of the appeal proposal on the character and appearance of the locality, with particular regard to the setting of Chinnor and the open countryside;
the balance between harm and benefit, with particular regard to whether the location of the proposed development would amount to sustainable development, in the context of national and local policy with regard to the location of housing."
"I conclude that the appeal development would result in the loss of a green field and thereby encroach into the open countryside. However, such harm would be reduced as the appeal site makes a limited contribution to the rural landscaped setting of Chinnor. When taking account of the proposed development to its south at land off Crowell Road, the harm identified would be greater, but still limited. Taking all this into account, the appeal proposal would generally fail to accord with the overall aims of South Oxfordshire Local Plan (2011) Strike through version on adoption of South Oxfordshire Core Strategy December 2012 (LP) saved Policies G2, G4 and C4. These, together, aim to protect the District's countryside from adverse development, recognise the need to protect the countryside for its own sake as an important consideration when assessing proposals for development and the landscape setting of settlements. In seeking to balance development against the protection of the intrinsic character and beauty of the countryside, I find these policies generally accord with paragraph 17 bullet point 5 of the Framework."
"29. CS Policy CSS1 sets out the CS's overall spatial strategy and includes in (iv) supporting and enhancing larger villages as local service centres. CS Policy CSH1 provides that planning permission will be granted to meet housing requirements of 5,214 dwellings by 2027, divided between allocations in and around Didcot which would be roughly 2,330 and 2,884 in the rest of the District (RoD).8 CS Table 7.3 sets out that the larger villages, which include Chinnor, will contribute 1,154 dwellings in the RoD.
30. CS Policy CRS1 sets out that housing in the larger villages will be permitted through site allocations and on infill sites. There is no dispute between the two main parties that the appeal development does not fall within the definition of infill and that it would not be on an allocated site. Further, it is not in dispute that the appeal proposal would be contrary to that CS policy. However, the weight that I attach to that policy conflict is reduced by a number of factors outlined below.
31. Firstly, there is no dispute between the two main parties that the CS allows for at least 160 dwellings at Chinnor, that no extant permissions exist to provide for that number of dwellings and that the appeal proposal would deliver less than that number. The Council's planning witness accepted in cross examination that the appeal development, of itself, would not result in harm to investment or growth at Didcot. In these circumstances, the appeal proposal would accord with the CS overall spatial strategy as set out in CS Policy CSS1 and CSH1.
32. Secondly, CS paragraphs 7.11 and 7.20 explain that the distribution of growth allocated to the larger villages will be decided through the Site Allocations Development Plan Document (SADPD). However, the Council confirmed that the SADPD has been abandoned. Instead, an early review of the CS is underway and the emerging South Oxfordshire Local Plan 2031 Refined Options (2015) (emerging LP) seeks views based on an allocation of at least 160 dwellings to Chinnor and shortlists a number of sites, which includes the appeal site. However, this is not an adopted development plan (DP).
33. A Chinnor Neighbourhood Plan (NP) is proposed. However, this is at a very early stage of preparation. Whilst the designated area has been approved, no draft NP policies are before me. A 'made' NP is anticipated towards the end of summer 2017. At this stage it does not provide any further direction on where housing in Chinnor should be located. In these circumstances there is a policy vacuum with regard to where the suggested housing in larger villages should go.
34. Thirdly, the Council does not advance a prematurity objection. Taking on board the advice in the Planning Practice Guidance regarding prematurity9, I agree that the emerging plan is not at an advanced stage and the proposed development would not be so substantial that it would undermine the plan making process. In these circumstances I have no reason to take an alternative view to the Council on this point. Moreover, the appeal proposal would accord with that emerging plan.
35. However, I agree that some harm could arise due to the fact that the appeal site is not allocated in a DP and it would comprise a large part of the CS requirement for Chinnor without full involvement of the community. However, it is accepted by both main parties that development at Chinnor to meet the CS requirements will have to involve some development on green field sites. Further, the appeal proposal would accord with the overall spatial strategy of the CS and in particular Policies CSS1 and CSH1. Some consultation has taken place on the prospect of development on the appeal site through the emerging LP. Whilst this is not an adopted DP, I accord some weight to the fact that some consultation has taken place with local people regarding the appropriateness of allocating the appeal site through the emerging LP.
36. Fourthly, as the proposed mechanism to allocate sites at Chinnor has not occurred, the appeal development would comply with CS Policy CSC1, which sets out the contingency if sites are not delivered as anticipated in the CS.10 The appeal proposal would be in general accordance with the distribution in the CS as set out in tables 7.1, 7.2 and 7.3 and would fall within (ii) and (iii) of that policy, in as much as it would bring forward sites anticipated to come on stream later in the plan process or through other mechanisms, such as an appeal.
37. Finally, the SADPD has been abandoned and therefore it would be impossible for a development proposal to comply with it. These matters, together, reduce the weight that I would attach to any DP conflict with CS Policy CSR1 and the Council's concern that the appeal proposal would not be considered through the plan-led system which would be contrary to the first core planning principle set out in paragraph 17 of the National Planning Policy Framework (the Framework). However, there is still a conflict with the DP, albeit one to which I accord reduced weight. I therefore need to consider whether there are other material considerations that would outweigh that limited conflict.
38. In any event, even if the above considerations did not apply and reduce the weight attached to a conflict with CS Policy CSR1, I have found that there is a policy vacuum, with regard to the allocation of sites in the larger villages in the RoD. Whilst this matter was raised by neither appellant or Council at the inquiry, that does not preclude me from coming to this view on the facts before me."
"54. The appeal proposal would comply with CS Policies CSS1 and CSH1 by supporting Chinnor as a local service centre and no substantive evidence is before me that the appeal development would result in harm to development at Didcot of itself
55. In relation to housing supply, the two main parties agree that Chinnor is a sustainable location, that at least 160 dwellings should be developed there, that no extant permissions exist for that number in Chinnor and that the mix of dwellings proposed is acceptable. As there is no policy that restricts development to the overall housing requirement, this would be a benefit of the appeal proposal whether the Council could demonstrate a five year supply of deliverable housing sites or not. In addition it would provide affordable housing, for which a local need is evidenced. That the appeal proposal would boost the supply of housing in accordance with paragraph 47 of the Framework is not disputed. It would provide housing and affordable housing to meet the needs of present and future generations through the provision of a range of housing types and sizes and would meet the social dimension of sustainable development. To the development proposal's contribution to housing, in the circumstances of this appeal, I attach significant weight.
56. With regards to its other economic benefits, it would provide some jobs in the construction industry as well as an increase in the local population, which would in turn bring added spending to the local economy and help to support local services and facilities.
57. In terms of its other social benefits, it would result in a contribution to services and facilities that could be of wider public benefit such as the No 40 bus service improvements as set out in the executed planning obligation. The provision of on-site open space would contribute towards healthy communities and as it could be centrally located it could be accessible to existing local residents. The future residents would have access to existing local services and facilities, even though the primary schools and main village shops would be some distance away.
58. On the basis of the reduced weight that I accord the DP conflict, that the appeal proposal would accord with the overall spatial strategy of the CS, that it would not result in material harm to the emerging LP, and some consultation has taken place on the prospect of the allocation of the appeal site through the emerging LP, overall it would not materially offend the plan-led system as set out in the first bullet point of the Core Planning Principles as set out in paragraph 17 of the Framework.
59. In terms of its environmental benefits, it would help to restore some of the key characteristics of the ORD landscape character area by reinforcing the field boundary planting. The proposed layout and built development, based on the illustrative layout could achieve a high quality built environment with appropriate open space and relationships between dwellings. Both these matters could be controlled through appropriately worded planning conditions. It would also result in an improvement to ecology through the provision of a wildlife corridor. The appeal proposal, as it would be located close to some services and facilities in Chinnor, would encourage the use of sustainable forms of transport, although I acknowledge that some facilities, such as secondary schools, larger shops and employment centres are further away.
The Harm
60. I have found that the appeal development would result in the loss of a green field and would encroach into the countryside, a conclusion unaffected when taking into account the development proposed to its south at land off Crowell Road. However, on the basis of the limited contribution of the appeal site to the rural landscaped setting of Chinnor, that some green space would separate the two proposed developments and that both would include large areas of open space, this harm would be limited. It would also be partly mitigated by appropriate design, the incorporation of open space and planting, which are other material considerations that I put into the planning balance. I have found conflict with CS Policy CSR1, but have concluded that due to the reference in CS Policy CSR1 to an abandoned SADPD, the impossibility of a development proposal according with that abandoned document, the lack of harm to the emerging LP and limited harm to the DP-led approach, I accord that conflict reduced weight in reaching my decision. In any event I have found that there is a policy vacuum with regard to the allocation of sites in the larger villages.
Planning Balance
61. I have found that, even though the appeal proposal would involve development on a greenfield site, some limited harm to the character and appearance of the locality would result, a matter unaffected by the consideration of development proposed at land off Crowell Road. Further, whilst I have found that there would be a DP conflict with CS Policy CSR1, matters that reduce the weight that I accord that DP conflict have been identified. Even if this were not the case, I have found that there is a policy vacuum with regard to where the houses to meet the strategic objectives of the CS should go in the larger villages.
62. I have found that the appeal proposal would have a beneficial effect on the supply of housing to which I accord significant weight and no substantive evidence is before me to demonstrate that it would, in itself, adversely affect development in Didcot. To the other social, economic and environmental benefits identified, I also accord some weight.
63. All other matters raised during the appeal have been considered but they do not lead me to any conclusion other than that overall, whilst recognising the priority given to the plan-led approach, the benefits of the appeal proposal would outweigh the harm and the proposed development would be sustainable. In accordance with CS Policy CS1, which promotes sustainable development, the appeal should be allowed.
64. Even though whether the Council can or cannot demonstrate a five-year supply of deliverable housing sites is a matter in dispute between the two main parties, in the circumstances of this appeal, I have no reason to consider further whether the relevant policies for the supply of housing should be considered up to date or not, whether they should derive from the now abolished South East Plan rather than the Strategic Housing Market Assessment (2014) , matters relating to the appropriateness of a disaggregated approach to housing land supply or the way in which a five year supply of deliverable sites is calculated. Suffice to say that were it the case that the Council could not demonstrate a five year supply of deliverable sites, it would increase the benefits of the appeal proposal in terms of its contribution to the supply of housing in the District. However, this matter would not alter the outcome of this appeal."
(vii) The CUK Decision Letter
"The effect of the appeal proposal on the open countryside and the setting of Chinnor;
the effect of the appeal proposal on the setting of the Oakley Conservation Area (OCA);
the balance between harm and benefit with particular regard to whether the proposed development would amount to sustainable development in the context of national and local planning policy with regard to the location of housing."
"16. The appeal site is not subject to any formal landscape designations. However, it sits within the Landscape Character Area 5: the Eastern Vale Fringes and is included within the rather small area of the Open Rolling Downs (ORD) landscape type. This is described as having a number of characteristics including smooth rounded landforms, dominance of intensive arable cultivation with weak or absent hedgerow structure, large scale field patterns, rural character, high inter visibility and extensive views. These characteristics are generally evident in the appeal site and the rest of the landscape included within the ORD nearby. It is also described as denuded and somewhat bleak and sterile with few features of landscape and wildlife value. Whilst that description appears to relate particularly to the area to the west of Watlington5 nothing suggests that it does not relate to the rest of the area under that classification. On my site visit, I found the large scale field pattern, lack of hedgerows and landscape features, provided an impression to fit that description. The enhancement strategy is 'restore' relating to its former diversity and structure taking account of the historic pattern of large scale field enclosures.
17. The appeal proposal would retain the existing topography and the large scale field pattern, in as much as it would be contained within one field and include additional planting and large areas of open space. Due to these matters, and as the proposed dwellings could generally be two to two and a half storeys and could avoid the highest parts of the appeal site, it would not appear overly prominent in the landscape. Further, it would retain the distinction between the ORD and other classifications, particularly the Semi-Enclosed Downs adjacent. Even if some parts were to be as high as development at Old Kiln Lakes, as that development is existing, the appeal proposal would not appear out of place. Further it would help to restore the appeal site's former diversity and structure taking account of the historic pattern of large scale field enclosures, in as much as it would include a substantial area of planting along the southern boundary. Although the proposed open space to the south would be parkland with some tree planting, as it would generally be informal and open, it would retain some element of openness. As it would sit within the existing large scale field boundary it would reflect the historic landscape pattern of small enclosed fields close to Chinnor and larger fields beyond. This would be the case even though views to the smaller enclosed fields from Chinnor Hill would be diminished in some views. However, due to the intervening planting, those views are very limited and therefore such diminishment would be small.
[18]-[20] ..
21. Most of the existing planting would be retained and that which would be lost on Crowell Road to accommodate the proposed access would be small and is not high quality. The appeal development would include proposed structure planting, areas of open space within and around the proposed development and an area of open space to the south. Together, these matters would help to mitigate the harm identified to the open, green and rural character and appearance of the locality. As there would be a relatively large planted boundary on the southern side of the appeal development, which would enclose the open space proposed, together with a broken edge to the built form, it would provide an appropriate urban edge to Chinnor, which would generally retain the rural approach to it and its rural, open and green setting. This in the medium to long term would improve the views towards Chinnor from the Crowell Road approach, which at present includes a collection of development at Old Kiln Lakes, a radio mast, some pylons, a maintenance shed and other urban features.
22. I acknowledge that the tree planting proposed would take time to establish and until that time some additional harm would result to the setting of Chinnor and the rural, green and open character and appearance of the locality. However, as this would be a temporary situation for roughly 10-15 years, this limits the weight I accord this matter.
23 ..
24. I have taken account of the effect of proposed development at land adjoining Greenwood Avenue referred to in paragraph 9 of my decision. Together, both developments would cover a larger area of green space on the periphery of Chinnor, would extend into the countryside and together would diminish its rural, green and open character and appearance. However, that proposed development would be separated from the appeal development by a large field, would include open space within it, would relate appropriately to the existing village envelope, would retain much of the existing planting and more would be included. Whilst these matters would reduce the harm identified, some additional harm would still arise as a result of both developments. Due to the location of that proposed development in relation to the AONB, no harm would result to that designated area.
"25. Overall, therefore, the appeal development would adversely affect the character and appearance of the locality, in particular the setting of Chinnor and the open countryside, albeit that harm would be limited by the factors identified; a finding unaffected by the consideration of a proposed development on land adjoining Greenwood Avenue referred to. Due to this, it would generally fail to accord with South Oxfordshire Local Plan (2011) (LP) saved Policies G2, G4 and C4, and D1, which together point out that the need to protect the countryside for its own sake along with the landscaped setting of settlements and the need to reinforce local distinctiveness are important considerations when assessing proposals for development. On the basis of the information before me, I find that these policies, in seeking to balance the protection of the countryside and the need for development, generally accord with paragraph 17 bullet point 5 of the National Planning Policy Framework (the Framework), which sets out the need to recognise the intrinsic character and beauty of the countryside. The appeal development would also generally accord with South Oxfordshire Design Guide (2008), which promotes sustainable development and good design."
"Having concluded at paragraph 30 that the proposed development would, on balance, preserve the setting of the OCA (i.e. the second issue), she turned to the issue on the location of housing at paragraphs 32-42:
32. CS Policy CSS1 sets out the CS's overall spatial strategy and includes in (iv) supporting and enhancing larger villages as local service centres. CS Policy CSH1 provides that planning permission will be granted to meet housing requirements of 5,214 dwellings by 2027, divided between allocations in and around Didcot (2,330) and in the rest of the District (2,884).14 CS Table 7.3 sets out that the larger villages which include Chinnor, will contribute 1,154 dwellings in the rest of the District (RoD). CS paragraphs 7.11 and 7.20 explain that the distribution of growth allocated to the larger villages will be decided through the Site Allocations Development Plan Document (SADPD). This is referred to in CS Table 7.3.
33. However, sites in the larger villages have not been allocated in a SADPD. Instead an early review of the CS is underway, principally due to the publication of a Strategic Housing Market Assessment (2014) (SHMA), which indicated that South Oxfordshire needs additional housing beyond that planned for in the CS and Oxford City Council has indicated that it is unable to meet its identified need entirely within the city boundary, which may result in SODC needing to consider accommodating some of that unmet need.
34. The emerging South Oxfordshire Local Plan 2031 Refined Options (2015) (emerging LP) seeks views based on an allocation of at least 160 dwellings to Chinnor and shortlists a number of sites, which does not include the appeal site. However, that is not an adopted development plan. Whilst a Chinnor Neighbourhood Plan (NP) is proposed, this is at a very early stage of preparation. The designated area has been approved and a made NP is anticipated towards the end of summer 2017. No draft NP policies are before me.
35. In these circumstances, I consider that there is a policy vacuum on the issue of site allocations in the larger villages. Therefore the development plan is silent on the issue of where and how much housing should be allocated at Chinnor. In making this finding I have considered the application of LP saved Policies G2 and G4. However, both predate the CS and its anticipated level of growth and do not help resolve the tension between development on a green field site and accommodating development suggested in the CS at Chinnor. That the Council's planning witness in giving evidence suggested that LP policies G2 and G4 were not policies for the supply of housing adds weight to this finding.
36. I have considered the judgment of Mr Justice Lindblom" (that in Bloor Homes E Midlands v SSCLG [2014] EWHC 754) "brought to my attention but I am satisfied that case related to a different policy context to the appeal proposal, which included a draft SADPD at an advanced stage of preparation, which identified that site as the preferred site to meet a development need in a settlement defined as a Key Rural Centre. All in all, in respect of this appeal, I consider that there is not a body of policy relevant to the proposal being considered and sufficient to enable the development to be judged acceptable or unacceptable.
37. Paragraph 14 of the Framework advises that at its heart is a presumption in favour of sustainable development. For decision taking this means that where the development plan is silent, planning permission should be granted unless any adverse impacts of so doing would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. It is agreed between the two main parties that specific policies in the Framework do not indicate that development should be restricted.
38. The development plan is silent on the question of the allocation of dwellings in the larger villages in the RoD. The development plan does not indicate that development should be limited to the overall housing requirements of the District. I am aware that there are a number of extant planning applications and appeals which, if all approved, would result in more than 160 dwellings being developed in Chinnor, which the Council suggests would not relate appropriately to the size of Chinnor. However, I have no assurance that this would be the case and there is no policy suggesting that number is a cap. Those proposals are not before me and I am tasked to consider the appeal proposal that is. In any event, this matter is overridden by the silence of the development plan as explained above.
39. I therefore do not need to consider further whether the relevant policies for the supply of housing should be considered up to date or not. This includes considerations as to whether they derive from the now abolished South East Plan rather than the SHMA 2014, whether the Council can or cannot demonstrate a five year supply of deliverable housing sites and matters relating to the appropriateness of a disaggregated approach to housing land supply and the way in which a five year supply of deliverable sites is calculated. In accordance with Paragraph 14 of the Framework, I will go on to consider the adverse impacts of the proposal and its benefits, against the policies in the Framework and the other relevant policies of the development plan so far as they are consistent with the Framework.
40. In relation to housing supply, the two main parties agree that Chinnor is a sustainable location, that at least 160 dwellings should be developed there, that no extant permissions exist for that number in Chinnor and that the mix of dwellings proposed is acceptable. That the appeal proposal would help to boost significantly the supply of housing is not disputed and this would be the case whether the Council could or could not demonstrate a five year supply of deliverable sites.
41. I conclude that the appeal proposal would be suitably located, having regard to national and local planning policy and would generally accord with CS Policies CSS1 and CSH1 by supporting Chinnor as a local service centre and no substantive evidence is before me that the appeal development would result in harm to development at Didcot.16 This point was accepted by the Council's planning witness. Although it does not accord with CS Policy CSR1, which would allow housing in Chinnor where allocated or as infill, that policy conflict is overridden by the silence of the development plan on the matter of allocations in the larger villages in the RoD.
42. In coming to this conclusion, I have had regard to previous appeal decisions brought to my attention, too numerous to mention individually, which are all material considerations in this appeal. Out of the most recent and relevant ones which relate to SODC, I agree with the Council that Inspectors have taken different approaches to the issue. Having considered those decisions carefully, in as far as they are relevant to this appeal, my conclusions generally are consistent with those Inspectors' views."
"Conclusions on Sustainable Development
56. I have found that some harm would result to the rural, green and open character and appearance of the locality. In the short term until the planting and landscape mature the appeal proposal would be more prominent in the landscape, particularly in views from Crowell Road.19 However, overall and in the medium to long term, I have found that with suitable structure planting, the provision of a large area of open space on its southern side and a fragmented development edge that links in with existing development, the harm identified could be reduced, such that it would be limited. On balance, no harm has been identified to the setting of the OCA.
57. The benefits of the provision of housing, including affordable housing, are acknowledged by both main parties. Whether or not it is needed to ensure that the Council has a five year supply of deliverable housing sites, it would significantly boost supply in accordance with paragraph 47 of the Framework. In the circumstances of this appeal, I attach significant weight to this issue, weight that would increase if the Council could not demonstrate a five year supply of deliverable sites.
58. Paragraph 7 of the Framework sets out the three dimensions of sustainable development. The appeal proposal would fulfil an economic role by the provision of housing, including affordable housing, the provision of jobs in the construction industry as well as increasing the local population which will in turn bring added spending to the local economy and help to support local services and facilities.
59. In terms of the social role the appeal proposal would contribute to providing housing to meet the needs of present and future generations through the provision of a range of housing types and sizes, including affordable housing and a contribution to services and facilities as set out in the executed planning obligation. The provision of on-site open space would contribute towards healthy communities and would be likely to be a wider benefit as it exceeds that which would be required to serve the needs of the appeal development, even though the appeal site would not be within walking distance of many dwellings in Chinnor. The future residents would have access to existing local services and facilities, even though the primary schools and main village shops would be some distance away.20
60. The Council does not advance a prematurity objection. In any event, any harm to the plan-led system is overridden by the silence of the development plan on the issue of allocations to the larger villages in the RoD. Even if this were not the case, it is accepted by both main parties that development at Chinnor to meet the aims of CS Policies CSS1 and CSH1 will require development on green field sites. Further, as the proposed mechanism to allocate sites at Chinnor has not occurred, it would also comply with CS Policy CSC1, which sets out the contingency if sites are not delivered as anticipated in the CS.21 The appeal proposal would be in general accordance with the distribution of the CS as set out in tables 7.1, 7.2 and 7.3 and would fall within (ii) and (iii) of that policy, in as much as it would bring forward sites anticipated to come on stream later in the plan process or through other mechanisms, such as an appeal. These matters reduce the weight that I would have accorded to any harm to the plan-led system in any event.
61. In terms of its environmental role, some limited harm would result as a consequence to the rural, green and open character and appearance of the locality. The appeal development would help to restore some of the key characteristics of the ORD landscape character area and increase the amount of publically accessible open space based on the landscape strategy parameter plan. The proposed layout and built development, based on the illustrative masterplan could achieve a high quality built environment with appropriate open space and relationships between dwellings. Both these matters could be controlled through appropriately worded planning conditions. It would also result in an improvement to biodiversity through the provision of varied habitats as opposed to the current agricultural use. The use of natural resources, addressing climate change and a move towards a low carbon economy could be achieved through appropriate planning conditions. The appeal proposal, as it would be located close to some services and facilities in Chinnor, would encourage the use of sustainable forms of transport, although I acknowledge that some facilities, such as secondary schools, larger shops and employment centres are further away. In this regard it would also improve the local footway and cycleway network, which would also be a social gain.
62. All other matters raised during the appeal have been considered but they do not lead me to any conclusion other than that overall, the proposed development would be sustainable. Therefore, in accordance with the advice given in paragraph 14 of the Framework and CS Policy CS1, which promotes sustainable development, the appeal is allowed, subject to the conditions set out in Annex D to this decision."
(viii) The position of the Secretary of State
"For clarity, the First Defendant does not intend to oppose either claim. Having carefully considered the two decisions in the light of the Claimant's details of claim, it is conceded on behalf of the First Defendant Secretary of State that both decisions should be quashed on the ground that his Inspector took apparently contrasting approaches to the question of the status of the application of Local Policy CSR1 and paragraph 14 of the National Planning Policy Framework, which fell to be considered in both appeals. In doing so, she failed to provide sufficient reasons for her contrasting approaches in what appear to be materially similar cases. ln consequence, the Inspector erred in law, and the decisions should be quashed."
(ix) The case for SODC
i) Ground 1: the Inspector failed to understand or apply paragraph 14 of NPPF properly. In particular she was wrong to describe the development plan as "silent" within the meaning of paragraph 14;ii) Ground 2: she did not apply the paragraph 14 issue consistently. In the TW decision letter she did not treat the development plan as "silent" as she did in the CUK case. She was required to give reasons why she used a different approach;
iii) Ground 3: she failed to take into account a material consideration, namely the adverse effect on the plan making process in a plan led system of the grant of permission on appeal;
iv) Ground 4: she erred in her understanding of policy CSC1;
v) Ground 5: she was wrong to have regard to the separation of the two developments by the field between them, and also reached a conclusion on the characteristics of the landscape without giving adequate reasoning.
"44 In the context of decision-taking paragraph 14 identifies three possible shortcomings in the development plan, any one of which would require the authority to grant planning permission unless it is clear in the light of the policies of the NPPF that the benefits of doing so would be "significantly and demonstrably" outweighed by "any adverse impacts", or there are specific policies in the NPPF indicating that "development should be restricted". The three possible shortcomings are the absence of the plan, its silence, and its relevant policies having become out of date.
45 These are three distinct concepts. A development plan will be "absent" if none has been adopted for the relevant area and the relevant period. If there is such a plan, it may be "silent" because it lacks policy relevant to the project under consideration. And if the plan does have relevant policies these may have been overtaken by things that have happened since it was adopted, either on the ground or in some change in national policy, or for some other reason, so that they are now "out-of-date". Absence will be a matter of fact. Silence will be either a matter of fact or a matter of construction, or both. And the question of whether relevant policies are no longer up to date will be either a matter of fact or perhaps a matter of both fact and judgment.
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).
47 This case is clearly not one in which the development plan was "absent". That is simply a matter of fact. The plan was in being. At the time of the inquiry into Bloor's appeal it was made up of three components, the East Midlands Regional Plan of March 2009, the core strategy, and the saved policies of the local plan (see paragraph 31 above). A further component, the Site Allocations DPD, was still emerging. It was going through its statutory process towards adoption. The core strategy identified the need for 9,000 new homes to be provided in the borough between 2006 and 2026. In the Site Allocations DPD allocations would be made to fulfil that need. But the fact that that part of the development plan was yet to be adopted did not mean that the plan was absent in the sense of paragraph 14 of the NPPF. The plan was present, though not yet complete. Absence and incompleteness are not the same thing.
48 I come then to the question of whether in this case the plan could be said to be "silent". However broad this concept may be, I do not think it can possibly be invoked in this case.
49 Whether a plan is silent as opposed to its being absent or its relevant policies out of date is an issue that may fall to the court to decide. Where the meaning of planning policy is contentious it is, in the end, for the court to establish which interpretation is right. As Lord Reed said in paragraph 17 of his judgment in Tesco v Dundee City Council, a local planning authority must proceed on "a proper understanding of the development plan". This is a necessary corollary of the authority's duty in section 70(2) of the 1990 Act to have regard to the plan and its duty in section 38(6) of the 2004 Act to determine applications in accordance with the plan unless material considerations indicate otherwise. As Lord Reed said (ibid.), the authority "cannot have regard to the provisions of the plan if it fails to understand them". If the authority fails to see that the plan is silent, or thinks it is silent when it is not, it will have gone wrong in law. It will have misconstrued the plan.
50 The answer to the question "Is the plan silent?" will sometimes be obvious, because the plan simply fails to provide any relevant policy at all. But often it may not be quite so clear-cut. The term "silent" in this context does not convey some universal and immutable meaning. The NPPF does not itself explain what the Government had in mind when it used that word. But silence in this context must surely mean an absence of relevant policy. I do not think a plan can be regarded as "silent" if it contains a body of policy relevant to the proposal being considered and sufficient to enable the development to be judged acceptable or unacceptable in principle.
51 A plan may or may not be "silent" if it does not allocate the particular site in question for a particular use, whether on its own or as part of a larger area, or if it does not contain policy designed to guide or limit or prevent development of one kind or another on that site or in that location. In Tesco v Dundee City Council Lord Reed observed (at paragraph 18) that the development plan is "a carefully crafted and considered statement of policy", whose purpose is to show how the local planning authority will approach its decisions on proposals for development unless there is a good reason not to do so. This is an essential principle of the plan-led system.
52 The provisions of the plan current at the time of the decision may represent one stage of plan-making, and they may later be amplified or refined in another. They may be strategic rather than specific to the site. But they may still provide an ample basis for decision-making on proposals submitted and determined before any addition to the plan has been made. The plan may not have as much to say of relevance to the proposed development as the developer or the local planning authority, or indeed the objectors, might wish. But whether it can properly be said to be silent is a matter for objective interpretation, not the subjective view of any of the parties involved. As Lord Reed said in paragraph 18 of his judgment in Tesco v Dundee City Council, "policy statements should be interpreted objectively in accordance with the language used, read in its proper context".
53 Of course, as Lord Reed also remarked (at paragraph 19), "development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must 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 the exercise of judgment". It may be that a plan does not have a specific policy for a particular type of proposal that might be put forward on a particular site. The relevant provisions of the plan may be framed in general terms. Often this will be so. But in my view a plan containing general policies for development control that will enable the authority to say whether or not the project before it ought to be approved or rejected subject of course to other material considerations indicating a different outcome could hardly be said to be silent.
54 In this case the development plan was not silent on the minimum number of new homes that were going to have to be provided through the allocation of land in Groby, thus enabling it to take its share of the total burden of new housing the borough will have to provide. That minimum number was specified in Policy 8 of the core strategy. It was 110. Bloor's proposal was for 91. But it was being promoted on an unallocated site, or, as Bloor would contend, on a site yet to formally be allocated in the Site Allocations DPD.
55 The plan was not silent on the approach the Council would take to proposals for the development of housing in the Green Wedge between Groby and Ratby. The core strategy does not leave such proposals in a policy limbo. It has a policy that makes it as clear as one could wish what an applicant for planning permission for such development can expect, unless he is able to show some good reason for a different decision. That policy is Policy 9. Its meaning is plain. It tells one what kind of development will be "encouraged" in the Green Wedge, which is a use that will "provide appropriate recreational facilities within easy reach of local residents ". It also indicates which land uses will be "acceptable" in the Green Wedge, and, by necessary inference, which will not. The "acceptable" uses are generally those that would preserve the openness of the land within the Green Wedge. They do not include housing.
56 To any developer seeking planning permission for housing development on a site in the Green Wedge the import of those two policies of the core strategy will be unmistakeable. The fact that housing is not an acceptable type of development in the Green Wedge does not mean that such development can never be permitted. There may be considerations that warrant a decision to approve it even though it is contrary to Policy 9. At this stage such a proposal might be seen as gaining some support from Policy 8 because it would help the Council to meet the identified need for at least 110 new homes to be provided in Groby in the course of the plan period, though only limited support because the site would not have the benefit of an allocation in the Site Allocations DPD.
57 In that situation, subject to the proposal's compliance with the other relevant policies of the plan, the Council would have to judge whether or not a decision to grant planning permission for the scheme would be in accordance with the development plan. In determining the application it would have to have regard to all other material considerations, including the relevant parts of the NPPF and, if there was a shortfall in the available supply of land for housing, the provisions of the NPPF that govern the making of decisions when that is so. If the proposal was found to be in conflict with the development plan it might still be permitted if those other material considerations were strong enough to outweigh the statutory presumption in favour of the plan "considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given it" (see the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, at p.1459D-H). The important point, however, is that the Council's decision in that hypothetical case would not have to be made in a development plan policy vacuum. There is no vacuum.
58 On that analysis it is impossible to conclude that the circumstances of this case were such as to trigger the policy in paragraph 14 of the NPPF for decision-taking in cases where the development plan is absent or silent. The fact that allocations of land to meet the need for housing development in Groby had not yet been put in place in the Site Allocations DPD did not render the plan absent or silent."
(x) The abandonment of the SODC case against TW
(xi) Submissions for CUK
"19 The approach the court will take when interpreting planning policy is well settled. As Lord Reed said in Tesco v Dundee City Council [2012] UKSC 13 (in paragraph 17 of his judgment, with which the other members of the Supreme Court agreed), a planning authority determining an application for planning permission "must proceed upon a proper understanding of the development plan", and "cannot have regard to the provisions of the plan if it fails to understand them". Lord Reed went on to say (in paragraph 18) that "in principle, in this area of public administration as in others policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context". He emphasized, however (in paragraph 19), that statements of policy "should not be construed as if they were statutory or contractual provisions". He also said (in the same paragraph) that "many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment", and that "[such] matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse " (see also the judgment of Lord Hope, at paragraph 35). It has been accepted in this court, and is not in dispute in these appeals, that the same principles apply also to the interpretation of national policy and guidance, including policies in the NPPF (see, for example, the judgment of Richards L.J. in R. (on the application of Timmins) v Gedling Borough Council [2015] EWCA Civ 10, at paragraph 24; and the judgment of Sir David Keene in Hunston, at paragraph 4)."
"71 .. neither 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."
(xii) Discussion and Conclusions
i) she identified the main issues [2];ii) she then addressed the site and surroundings, and the effect of the proposed development on the character of Chinnor and the countryside around it [10]-[27];
iii) she addressed the effect on the Oakley Conservation Area [28]-[31];
iv) she considered the policies of the Core Strategy on the amount and location of housing, and the effect of the polices in NPPF [32]-[42] ;
v) She assessed the offered planning obligation [43]-[50];
vi) she considered access and traffic issues [44]-[55];
vii) she decided whether the development would be sustainable [56] - [62];
viii) she concluded that the appeal should be allowed [62];
ix) she addressed the topic of conditions [63]-[67].
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).
i) have regard to the statutory Development Plan (see section 70(1) TCPA 1990);ii) have regard to material considerations (section 70(1) TCPA 1990);
iii) determine the proposal in accordance with the Development Plan unless material considerations indicate otherwise (s 38(6) PCPA 2004);
iv) apply national policy unless s/he gives reasons for not doing so- see Nolan LJ in Horsham District Council v Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment [1987] 54 P & CR 86 and see Lindblom J in Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin), [2011] JPL 887 at [50];
v) if it is shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision will be quashed unless the Court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v. Secretary of State for the Environment [1988] 57 P & CR 306.
"42 The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory "presumption in favour of the development plan", as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the "presumption in favour of sustainable development", do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework as the NPPF itself acknowledges, for example, in paragraph 12 . It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense.
43 When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted."
"46 We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make "out-of-date" policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is "out-of-date" should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.
47 One may, 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 than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy such as the protection of a "green wedge" or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment (see paragraphs 70 to 75 of Lindblom J.'s judgment in Crane, paragraphs 71 and 74 of Lindblom J.'s judgment in Phides, and paragraphs 87, 105, 108 and 115 of Holgate J.'s judgment in Woodcock Holdings Ltd. v Secretary of State for Communities and Local Government and Mid-Sussex District Council [2015] EWHC 1173 (Admin)).
"But silence in this context must surely mean an absence of relevant policy. I do not think a plan can be regarded as "silent" if it contains a body of policy relevant to the proposal being considered and sufficient to enable the development to be judged acceptable or unacceptable in principle." (my emphasis)
"46 We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make "out-of-date" policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is "out-of-date" should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.
47 One may, 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 than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy such as the protection of a "green wedge" or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment (see paragraphs 70 to 75 of Lindblom J.'s judgment in Crane, paragraphs 71 and 74 of Lindblom J.'s judgment in Phides, and paragraphs 87, 105, 108 and 115 of Holgate J.'s judgment in Woodcock Holdings Ltd. v Secretary of State for Communities and Local Government and Mid-Sussex District Council [2015] EWHC 1173 (Admin))."
i) a Development Plan which provided for development in the large villages, including Chinnor, and when drawn up anticipated the production of a DPD allocating sites to that end;ii) the abandonment of that DPD;
iii) the participation by SODC in the SHMA, which gave higher figures for housing requirements, but which had not yet been translated into allocations;
iv) a common position that Chinnor would see further development of at least 160 houses, which would have to be on undeveloped greenfield sites;
v) national policy guidance in the NPPF which had "at its heart" (see [14]) a presumption in favour of sustainable development, and in its housing section, the objective "to boost significantly the supply of housing;"
vi) a site whose development she had concluded could be carried out without causing more than limited harm to the character and appearance of the locality and brought with it various benefits [61] and would overall be sustainable [61].
"In these circumstances, I consider that there is a policy vacuum on the issue of site allocations in the larger villages. Therefore the development plan is silent on the issue of where and how much housing should be allocated at Chinnor."
is a planning judgment that was open to her. Indeed the fact that SODC itself accepted that there would be a supply of at least 160 dwellings from peripheral sites in Chinnor makes it difficult to accept that SODC itself regarded the rather elderly Local Plan as being of any weight in the decision making process. Her conclusion that there was not a body of policy relevant to the proposal being considered, and sufficient to enable the development to be judged acceptable or unacceptable was not only based on precisely the appropriate test in Bloor but was also a planning judgment to which she was entitled to come.
"Annex 1 of the National Planning Policy Framework explains how weight may be given to policies in emerging plans. However in the context of the Framework and in particular the presumption in favour of sustainable development arguments that an application is premature are unlikely to justify a refusal of planning permission other than where it is clear that the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, taking the policies in the Framework and any other material considerations into account. Such circumstances are likely, but not exclusively, to be limited to situations where both:
a) the development proposed is so substantial, or its cumulative effect would be so significant, that to grant permission would undermine the plan-making process by predetermining decisions about the scale, location or phasing of new development that are central to an emerging Local Plan or Neighbourhood Planning; and
b) the emerging plan is at an advanced stage but is not yet formally part of the development plan for the area.
Refusal of planning permission on grounds of prematurity will seldom be justified where a draft Local Plan has yet to be submitted for examination, or in the case of a Neighbourhood Plan, before the end of the local planning authority publicity period. Where planning permission is refused on grounds of prematurity, the local planning authority will need to indicate clearly how the grant of permission for the development concerned would prejudice the outcome of the plan-making process.
i) any harm to the plan led system is overridden by the silence of the development plan on the issue of allocations in the larger villages;ii) in any event, both parties accepted that development at Chinnor which complied with policies CSS1 and CSH1 would take greenfield sites;
iii) it complied with CSC1, both in terms of its general policy on distribution, and because it used an "other mechanism" as the policy anticipated.