QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Peel Investments (North) Limited
|- and -
|Secretary of State for Housing Communities and Local Government
|Salford City Council
Richard Honey (instructed by Government Legal Department) for the First Defendant
Christopher Katkowski QC and Matthew Fraser (instructed by Salford City Council) for the Second Defendant
Hearing dates: 22nd & 23rd May 2019
Crown Copyright ©
Mr Justice Dove :
The relevant planning policies
"Policy EN 2
Development will not be permitted where it would fragment or detract from the openness and continuity of the Greenway, or would cause unacceptable harm to its character or its value as an amenity, wildlife, agricultural or open recreation resource.
12.7 The Worsley Greenway is a strategically important "green wedge" within the Worsley area. It covers some 195 hectares, and is of great value to the city and local area. It provides amenity open space, recreational land and facilities, attractive landscapes, farmland, water features such as Old Warke Dam, public access, strategic recreation routes, areas of ecological importance, attractive woodland, features of historic and heritage importance, and relief within an urban area. It also provides the setting for the settlements of Worsley, Roe Green, Beesley Green, and the Bridgewater Canal, and is an essential element of their historic character. The protection and enhancement of Worsley Greenway, in its entirety, is therefore of great strategic and local importance."
"Policy R 4
Key Recreation Areas
Planning permission will only be granted for development within, adjoining or directly affecting a key recreation area where it would be consistent with the following objectives:
i. the protection and enhancement of the existing and potential recreational use of the area;
ii. the protection and improvement of the amenity of the area;
iii. the protection of existing trees, woodlands and other landscape features;
iv. where appropriate, the provision, improvement and maintenance of new areas of woodland planting;
v. the provision, improvement and maintenance of public access where appropriate, for walking, cycling, horse riding and water-based recreational activities;
vi. the provision, improvement and maintenance of accessible, open land recreation uses; and
vii. the protection, provision, improvement and maintenance of the quality and diversity of wildlife habitats.
14.16 The city council has identified a series of key recreation areas, which are of city-wide importance and are linked by the network of strategic recreation routes. These key recreation areas include areas of Green Belt, open land and the Worsley Greenway, which have great potential to help meet the demand for recreational uses, in a sustainable way, by providing formal and informal recreational opportunities close to where a large number of residents live. It may not be possible to provide unrestricted public access across the whole of the key recreation areas, but such access will be maximised as far as possible. Parts of the key recreation areas also lie within the wider Core Forest Areas identified in the Red Rose Forest Plan.
14.17 Some of the key recreation areas comprise neglected and underused land, which is to be the recipient of funding under the Newlands Programme. This will help to achieve transformations in the landscape of a scale that will change the image of the city and secure substantial local benefits. A number of the key recreation areas have the potential to form an important green gateway to Salford and to contribute to the objectives of the Regional Park (Policy R 3 'Regional Park').
14.18 There are eight key recreation areas, and these are shown on the proposals map:
7. Worsley Woods and Greenway;"
"Policy EN 9
Development that would affect any land that functions as a wildlife corridor, or that provides an important link or stepping stone between habitats, will not be permitted where it would unacceptably impair the movement of flora and fauna. Where development is permitted, conditions or planning obligations may be used to secure the protection, enhancement and/or management measures designed to facilitate the movement of flora and fauna across or around the site."
"Local planning authorities should not suppose that a regulatory local plan style approach will be supported in forthcoming Development Plan Documents. LPAs should adopt a positive spatial strategy led approach to DPD preparation and not seek to reintroduce the numerous policies of many local plans.
The exercise of extending saved policies is not an opportunity to delay DPD preparation. LPAs should make good progress with local development frameworks according to the timetables in their local development schemes. Polices have been extended in the expectation that they will be replaced promptly and by fewer policies in DPDs. Maximum use should be made of national and regional policy especially given the development plan status of the Regional Spatial Strategy.
Following 21st June 2009 the extended policies should be read in context. Where policies were adopted some time ago, it is likely that material considerations, in particular the emergence of new national and regional policy and also new evidence, will be afforded considerable weight in his decisions. In particular, we would draw your attention to the importance of reflecting policy in Planning Policy Statement 3 Housing and Strategic Housing Land Availability Assessments in relevant decisions."
An adequate supply of housing will be secured through the:
1. refurbishment and improvement of existing dwellings;
2. achievement of an average annual rate of housing provision, net of clearance, of 530 dwellings per year during the period up to 2016;
3. control of the type of dwellings provided as part of new residential developments; and
4. selective clearance, and where appropriate the replacement, of dwellings that are unfit, obsolete or suffer from low demand.
Location of New Development
Sites for development will be brought forward in the following order:
1. the re-use and conversion of existing buildings.
2. previously-developed land in locations that:
i. are, or as part of any development would be made to be, well-served by a choice of means of transport, particularly walking, cycling and public transport; and
ii. are well related to housing, employment, services and infrastructure.
3. previously-developed land in other locations, provided that adequate levels of accessibility and infrastructure provision could be achieved.
4. previously undeveloped land in locations that:
i. are, or as part of any development would be made to be, well-served by a choice of means of transport, particularly walking, cycling and public transport; and
ii. are well related to housing, Employment, services and infrastructure."
Managing the Supply of Housing
The release of land for housing development will be managed in accordance with the sequential approach set out in Policy ST 11 'Location of New Development'. Where there is evidence of an unacceptable actual or potential oversupply of housing, planning permission for housing development will only be granted in the following circumstances:
a. the development is considered to be an essential component in the regeneration of the local area;
b. the development is considered to be essential to the implementation of the UDP strategy;
c. the development would satisfy an important identified housing need; or
d. the development would be exceptional in terms of sustainable design and technology.
An actual or potential oversupply will only be considered to be unacceptable if there is clear evidence that the oversupply is having, or is likely to have, an unacceptable adverse impact on:
i. the achievement of the overall strategy of Regional Spatial Strategy for the north west, and of any subsequent Regional Spatial Strategy;
ii. the regeneration of the regional pole of Manchester/Salford;
iii. the Housing Market Renewal Initiative in Manchester and Salford and in Oldham/Rochdale;
iv. the achievement of other regeneration priorities within Salford; or
v. the adequate provision of infrastructure and other services.
7.6 Policy ST 2 'Housing Supply' makes sufficient provision to ensure that the supply of new housing meets the target of an average of 530 new dwellings per annum net of clearance, as set out in the Regional Spatial Strategy for the north west (RPG13). The nature of the sites means that they are likely to be developed reasonably evenly over the plan period. Some will almost certainly come forward later in the plan period, for example because they are currently occupied or suffer from infrastructure or contamination constraints, whereas others are immediately available for development. Nevertheless, it will be important for the city council to control the granting of planning permissions in order to ensure that there is not a significant over- or undersupply of new dwellings in relation to the Regional Spatial Strategy target."
"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 decision-taking this means:
- Approving development proposals that accord with the development plan without delay; and
- Where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
i) 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;
ii) specific policies in this Framework indicate development should be restricted."
"The presumption in favour of sustainable development
11. Plans and decisions should apply a presumption in favour of sustainable development.
For decision-taking this means:
c) approving development proposals that accord with an up-to-date development plan without delay; or
d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date7, granting permission unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed6; orii. 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.
6 The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.
7 This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years. Transitional arrangements for the Housing Delivery Test are set out in Annex 1."
"59. To support the Government's objective of significantly boosting the supply of homes, it is important that a sufficient amount and variety of land can come forward where it is needed, that the needs of groups with specific housing requirements are addressed and that land with permission is developed without unnecessary delay.
60. To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conduct using the standard method in national planning guidance unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.
61. Within this context, the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to, those who require affordable housing, families with children, older people, students, people with disabilities, service families, travellers, people who rent their homes and people wishing to commission or build their own homes).
67. Strategic policy-making authorities should have a clear understanding of the land available in their area though the preparation of strategic housing land availability assessment. From this, planning policies should identify a sufficient supply a mix of sites, taking into account their availability, suitably and likely economic viability. Planning policies should identify a supply of:
a) specific, deliverable sites for years one to five of the plan period; and
b) specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15 of the plan.
73. Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years' worth of housing against their housing requirement set out in adopted strategic policies36, or against their local housing need where the strategic policies are more than five years old37. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:"
a) 5% to ensure choice and competition in the market for land; or
b) 10% where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan, to account for any fluctuations in the market during that year; or
c) 20% where there has been significant deliverable under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply.
35 The delivery of large scale developments may need to be extend beyond an individual plan period, and the associated infrastructure requirements may not be capable of being identified fully at the outset. Anticipated rates of delivery and infrastructure requirements should, therefore, be kept under review and reflected as policies are updated.
36 For the avoidance of doubt, a five year supply of deliverable sites for travellers- as defined in Annex 1 to Planning Policy for Traveller Sites- should be assessed separately, in line with the policy in that document.
37 Unless these strategic policies have been reviewed and found not to require updating"
"210. Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.
212. However, the policies contained in this Framework are material consideration which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.
213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.
214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.
215. In other cases and following this 12-month period, due weight should be given to relevant policy's in existing plans according to their degree of consistency with this framework (the closer the polices in the plan to the policies in the Framework, the greater the weight that may be given)."
"213. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policy's in the plan to the policies in the Framework, the greater the weight that may be given)."
The decision-making process
50. The proposals comply with all relevant saved policies of the SUDP except Policies EN 2 and R 4. The proposals accord with the parts of Policy EN 2 that relate to wildlife and agricultural resources. The proposals accord with criteria iii) to vii) of Policy R 4.
51. It is agreed that Policy EN 2, relating to the designation of the Worsley Greenway, was formulated in the context of a development plan housing requirement of 530 dwellings per annum as set out in Policy ST 2 of the SUDP. This is less than one third of the most recently adopted housing requirement for Salford. The housing requirement in Policy ST 2 originated from Policy UR7 of the North West Regional Planning Guidance (RPG13) published in March 2003. This housing requirement was itself informed by 1996-based Government Household Projections. It was intended to cover the period 2002 to 2006.
52. Policy ST 2 of the SUDP was intended to cover the period April 2004 to March 2016. The policy was not saved beyond 21 June 2009 and has not formed part of the development plan for over eight years.
53. Salford does not have an up-to-date development plan policy regarding housing need. The SUDP does not contain any saved policies directly relating to a housing requirement or distribution. Policies in relation to housing mix, type, affordability and design are saved.
54. Part of the Greenway subject of SUDP Policy EN 2 is included in the draft SLP as an allocation for 60 dwellings."
"112. Policy EN 2 is out of date because it was conceived in a different policy context, when far fewer houses were needed in the area and at a time when needs could be met through urban regeneration, favouring brownfield sites first. Its rigid application is preventing Salford's full housing needs being met. The Council now accepts that housing needs can no longer be met through brownfield sites alone and proposes the allocation of greenfield land, including in the Worsley area and on part of the Greenway. The policy allows no balancing of any adverse impacts with positive benefits of development and is drafted in a form which is inconsistent with the Framework and the presumption in favour of sustainable development.
113. Policy EN 2 is out of date and very little weight can be placed on its provisions in the determination of these appeals."
"366. The appellant argues that the development plan is out of date for a number of reasons, specifically Policy EN 2. The SUDP was adopted in 2006 with a plan period expiring in 2016. It can certainly be said that it was produced in a different policy context and in light of different evidence and circumstances to those existing today. However, this does not necessarily mean that the plan or any individual policy should be considered out of date as it may very well continue to be effective in delivering its original objectives and those relevant today. The fact that a policy is saved means that it remains part of the development plan and must be applied unless material considerations indicate otherwise. The question is not one of time but consistency with the Framework and, ultimately, results on the ground.
367. Policy EN 2 protects the Greenway for reasons that have already been identified. There is no reason to think that those reasons are any less relevant or important than they were within the plan period. Paragraph 157 of the Framework positively promotes that Local Plans should, amongst other things, identify land where development would be inappropriate, for instance because of its environmental or historic significance. That is exactly what Policy EN 2 seeks to do and there is nothing inconsistent with the Framework in that approach, even if the development plan does not currently fulfil all other requirements of the Framework. Whilst the first part of the policy seeks to prevent development in absolute terms this is unsurprising given its objective to protect openness and continuity and it does not alter the need to undertake a statutory balancing exercise against material considerations.
368. It was argued that the Greenway was only protected because the land was not needed to meet the housing requirement for the area at the time and that there was a greater emphasis on the use of, and availability of, brownfield land at that time. There is simply no evidence to support this proposition. To the contrary, the policy and reasoned justification are quite clear about the reasons for protection and these are not diminished by a greater need for housing.
369. The fact that part of the Greenway might be allocated for development in the emerging SLP is of little relevance given the size and peripheral location of the Lumber Lane site. Furthermore, the emerging SLP is yet to be tested at Examination, is subject to objections and might yet change. The document itself states that its policies currently attract very limited weight. In any case, there is nothing to suggest that the appeal sites might be allocated. The draft SLP in fact anticipates increased protection of the area. These are squarely matters for the Local Plan Examination. Any potential release of the Greenway envisaged as part of the Core Strategy is similarly of little relevance given that the CS was withdrawn many years ago. In addition, the fact that there is a recognised need to release greenfield land and/or Green Belt to meet future housing needs in the draft SLP and GMSF demonstrates an emerging strategy to deal with the issue. For the same reasons I have set out above, such recognition attracts little weight in the context of these proposals.
370. For all of these reasons I do not consider that Policy EN 2 is in any way out of date. It is an adopted development plan policy which has statutory force. I have found it to be consistent with the Framework and I attach the identified fundamental conflict with the policy full and substantial weight.
371. It is common ground that the development plan no longer contains any policies relating to the need for or distribution of housing in the area. At the previous inquiry, the Council accepted that these policies were out of date and this position of common ground between the parties was adopted by the Inspector and the SoS. The Council now argues, having reconsidered its position, that this cannot be so as the policies are not saved; they do not exist and therefore cannot be out of date. DT accepted in xx that the policies for the need and distribution of housing could not be out of date because they simply do not exist in the development plan.
372. In this case the development plan contains no policies for the need for and distribution of housing and the Council is not seeking to apply any such policies. Policy EN 2 relates specifically to the appeal sites in question and is unambiguous in restricting development of the type proposed. In these circumstances, it cannot be said that the development plan is absent, silent or relevant policies are out of date. Having regard to the cases of Bloor and Barker Mill Estates, there remains a plan in place and so it is not absent; there remains a policy for the land in question which is sufficient to establish that the developments are unacceptable in principle and so the plan is not silent; and given the forgoing, the fact that there are no policies for the need and distribution of housing bears little on the outcome where the development plan is continuing to deliver an appropriate quantity of housing, the relevant policies for these appeals are not out of date."
"374. The appellant suggests that this does not amount to a five year housing land supply in accordance with Part 6 of the Framework in that it does not provide the full objectively assessed needs for market and affordable housing or a wide choice of high quality housing. This is because the identified supply would not meet the need for all types of housing, specifically family and affordable houses. In my view, that is not what is required for individual planning appeals. The second limb of paragraph 47 relates to decision-taking in that local planning authorities must identify and update annually a supply of deliverable sites sufficient to provide five years' worth of housing. That is a purely numerical exercise, which is agreed to be met in this case. The Court of Appeal held in the Gladman case that the other limbs of paragraph 47 relate purely to plan-making and have no implications for decision-taking where the second limb is met. In my view, the same applies for paragraph 50 which talks of planning for a mix of housing and setting policies. As such, whilst it is of little consequence in light of my conclusion above, I do not consider that relevant policies for the supply of housing should be considered out of date via paragraph 49 of the Framework.
375. That is not to say that an identified deficiency in particular types of housing is not a material consideration. The appellant produced three housing-related witnesses and I heard a great deal about the need for family and aspirational housing in the area, the acute lack of affordable housing and the Council's poor record in meeting these needs, particularly in Worsley. It is also abundantly clear from the detailed evidence that the five year housing land supply will not address these needs, being largely concentrated in the city centre, given the very high proportion of apartments as opposed to houses and the limited number of affordable units anticipated in relation to the identified need. Despite the copious amounts of evidence, very little of this was in dispute by the Council and much of the detailed figures are agreed in SoCG1 and its Addendum. The dispute is largely a matter of weight in the planning balance as opposed to matters of detail.
376. All scenarios put forward by the Council demonstrate a five year housing land supply and even using the worst case scenario put forward, a comfortable supply of 8.5 years is shown to exist. In fact neither of the parties favoured this methodology and based on the appellant's approach a supply of 9.2 years would result, compared to 11.8 years if the Council's preferred approach is used. The appellant considered that a higher proportion of houses compared to apartments would be needed in the supply in order to address current needs and the accumulated shortfall but again, this does not affect the overall existence of a deliverable five year housing land supply.
377. The Council's current housing land supply position represents a marked improvement since the time of the previous inquiry, when not even half of the required supply existed. This being the case, it cannot be said that Policy EN 2 is impeding delivery or that the development plan as a whole is failing to deliver the necessary number of residential units.
378. Whilst this is so, the Council is clearly not meeting the needs of the housing market as a whole and there are significant deficiencies in the number of larger/aspirational family houses and wider issues in the area in respect of homelessness and affordability. Some 85% of the Council's housing land supply comprises apartments and there would be a shortfall of at least 997 houses during the five year period against the Council's preferred GM SHMA requirement, deriving from 'Dwelling Type Mix 4'. This would be in addition to a shortfall in delivery of 102 houses since the GM SHMA base date (2014). The appellant suggests, based on the GM SHMA's higher estimates of housing need (Dwelling Type Mix 1) that the shortfall since 2014 could be as high as 762 houses, with a deficiency in the five year supply as much as 2,097 houses. The supply is heavily focused upon the central parts of Salford, in the wards of Ordsall and Irwell Riverside and so it unsurprising that higher density apartment schemes are predominant, but that does not lessen the need for houses in the wider area.
379. In addition, the Council recognises that there are wider social and economic benefits in the provision of larger family and aspirational housing, likely to attract skilled and economically active people that would support the local workforce. It is also accepted that Worsley is an area which can assist in meeting these needs. There are currently relatively few areas of Salford where the market can support this type of provision.
381. It is pertinent that the Council is seeking to address these issues through the local plan process and it is anticipated that new greenfield sites will need to be released to accommodate needs. No one scheme will be able to rebalance the Council's housing stock or meet the identified needs for various types of housing, certainly not either of the appeal schemes. It is therefore vital that the Council progresses the local plan as swiftly as possible to ensure that this issue is dealt with on a planned and comprehensive basis. The appellant does not anticipate the emerging SLP being adopted until at least 2020, but the agreed housing land supply makes provision well beyond this period and, quantitatively, should be sufficient to maintain supply until the SLP designates new sites. The plan-making process is clearly the most appropriate manner in which to effectively address the issue. That said, no definitive time scale for this was established during the inquiry and, for now, individual speculative schemes are the only way in which to begin to address such needs.
382. All of this is a material consideration to be weighed in the overall planning balance. The identified need for family and affordable housing is significant whichever parties' detailed figures are favoured and both appeal schemes would make a limited but valuable contribution to the need in these areas. I attach the contribution towards meeting the needs for family/aspirational housing and affordable housing significant weight. This is based on the appellant's worst case scenario in respect of the need for houses but this would remain a matter of significant weight even having regard to the Council's position."
"Planning Balance and Overall Conclusion
414. Although there is compliance with most development plan policies in these cases, there is a clear and fundamental conflict with the development plan in respect of Policies EN 2 and R 4, policies which I do not consider to be out of date or inconsistent with the Framework. In these circumstances, the tilted balance of Framework paragraph 14 does not apply. I attach substantial weight to the harm that arises from conflict with these policies, which are fundamental to the plan taken as a whole.
415. There would be some benefits from the proposals, including a contribution towards meeting recognised needs for different types of housing, specifically larger family and affordable housing, though the contribution to the identified need would be relatively small. There would also be some benefit from the provision of school land, a marina, certain open space typologies, net gains in biodiversity, economic benefits, improved accessibility/sustainable transport provision, highway improvements and flood risk reduction. However, even cumulatively, the benefits or other material considerations to which I have been referred would not outweigh the harm that I have found or indicate a decision other than in accordance with the development plan."
The Appellant presented evidence in relation to a number of important material considerations which should be afforded substantial weight in these appeals. Any implications of the new Framework for these considerations are addressed below.
1. Weight to be given to the Salford Unitary Development Plan (SUDP)
The Appellant's evidence demonstrates that the SUDP as a whole and Policy EN2 in particular are seriously out of date and can be afforded very little weight. Nothing in the new Framework, which takes into account the outcome of the Suffolk Coastal decision in the Supreme Court, contradicts this evidence.
There is no aspect of the new Framework that suggests that the SUDP or provisions of Policy EN2 should be afforded anything other than very little weight as evidenced by the Appellant
The new Framework reaffirms the importance of fully meeting housing needs. For example it notes that "to support the Government's objective of significantly boosting the supply of homes it is important that a sufficient supply and variety of land can come forward where it is needed [and] that the needs of groups with specific housing requirements are addressed....."(59).
It adds that "within this context, the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to, those who require affordable housing [and] families with children.." (61).
In addressing the identification of land for homes the new Framework requires strategic policy-making authorities (which include Salford City Council) to have a clear understanding of their supply and "from this, planning policies should identify a sufficient supply and mix of sites...." (67). In considering density it specifically requires decisions to take account of the "identified need for different types of houses" (122a).
These statements are consistent with the approach taken in paragraphs 47-50 of the 2012 Framework and support the Appellant's case that housing size, type, mix and tenure are all relevant to consideration of housing supply whether in plan-making or decision-making (see for example APP/AP/1: 2.1 2.26).
The new Framework (73) is consistent with the requirements of the second bullet point of paragraph 47 of the 2012 Framework in making clear that local policy authorities should be able to demonstrate a five year supply of deliverable sites "against their housing requirements set out in strategic policies or local housing need where strategic policies are more than five years old".
The Appellant's evidence demonstrates clearly that the Council and others have repeatedly recognised the importance of more family and affordable homes to the future regeneration, economic growth, and sustainability of Salford... Nothing in the new Framework changes this position."
The letter concluded that the 2018 Framework had no material effect on the substance of the Claimant's case.
"Matters arising from the 2018 Framework
4.4 Paragraph 213 of the 2018 Framework states:
" existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."
4.5 The approach set out above effectively mirrors that of the 2012 Framework.
4.6 There are various examples within the 2018 Framework which support the City Council's view that saved policies EN2 and R4 are consistent with the Framework and should be afforded full weight in decision taking.
4.7 In reference to policy EN2, Paragraph 17 of the 2018 Framework indicates that:
"The development plan must include strategic policies to address each local planning authority's priorities for the development and use of land in its area."
4.8 Further to this paragraph 20 states that
"Strategic policies should set out an overall strategy for the pattern, scale and quality of development, and make sufficient provision for: inter aliad) conservation and enhancement of the natural, built and historic environment, including landscapes and green infrastructure, and planning measures to address climate change mitigation and adaptation. (Our emphasis)
4.9 Paragraph 23 of the 2018 Framework indicates that Development Plans should, amongst other things identify:
"Broad locations for development should be indicated on a key diagram, and land-use designations and allocations identified on a policies map."
4.10 This point was raised at paragraph 3.8 of Simon Wood's Proof of Evidence which broadly mirrors paragraph 157 bullet point 4 of the 2012 Framework.
4.11 Further to this Paragraph 171 of the 2018 Framework states that:
"Plans should: distinguish between the hierarchy of international, national and locally designated sites; allocate land with the least environmental or amenity value, where consistent with other policies in this Framework; take a strategic approach to maintaining and enhancing networks of habitats and green infrastructure; and plan for the enhancement of natural capital at a catchment or landscape scale across local authority boundaries. (Our emphasis)
4.12 In respect of policies EN2 and R4, it is considered that paragraphs 96 and 170 support's the City Council's assertion that these policies are consistent with the 2018 Framework.
4.13 Paragraph 96 of the 2018 Framework states that:
"Access to a network of high quality open spaces and opportunities for sport and physical activity is important for the health and well-being of communities."
4.14 This approach largely mirrors that which was presented in Section 8 of the 2012 Framework in relation to the promotion of healthy communities and the contribution that high quality open spaces can make to health and well-being of communities.
4.15 Paragraph 170 of the 2018 Framework states that:
"Planning policies and decisions should contribute to and enhance the natural and local environment by:a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan);b) recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural capital and ecosystem services including the economic and other benefits of the best and most versatile agricultural land, and of trees and woodland;" (our emphasis)
4.16 Criterion a) mirrors that which was set out in paragraph 109 of the 2012 Framework whilst criterion b) largely mirrors bullet point 5 of the 2012 Framework. The Greenway is evidently valued by the local community and the City Council alike given priority by the City Council to protect this tract of land in the past, present and future development plans, and also the strength of value placed on its on-going retention as an important amenity space by the local community.
4.17 Given the above passages it is considered that saved policies EN2 and R4 are consistent with the 2018 Framework and should continue to be given full weight by the Secretary of State in the consideration of these appeals."
"7. Section 4 of the Council's comments sets out its claim that Policies EN2 and R4 of the UDP are consistent with the new Framework. It highlights a number of sections of the new Framework to support this position. Those sections referred to are not materially different from equivalent provisions of the 2012 Framework, though in a number of cases these were not previously being relied upon in the Council's evidence to the inquiry. For example:
- Paragraph 4.8 of the Council's submission refers to paragraph 20 of the new Framework . This generally replicates provisions already contained in paragraph 156 of the 2012 Framework which Mr Wood's proof does not refer to as being relevant to his case that Policies EN2 and R4 are is consistent with the 2012 Framework.
- Paragraph 4.11 of the Council's submission refers to para 171 of the new Framework. These provisions are generally captured in paragraphs 113 and 114 of the 2012 Framework but again Mr Wood's proof does not refer to these as being relevant to his case that Policies EN2 and R4 are consistent with the 2012 Framework.
- Paragraph 4.15 of the Council's submission refers to paragraph 170 of the new Framework. The provisions referred to were also captured in paragraph 109 and the fifth bullet of para 17 of the 2012 Framework but again Mr Wood's proof does not refer to these as being relevant to his case that Policies EN2 and R4 are consistent with the 2012 Framework.
To the extent that the Council's submission seeks to introduce matters not previously referred to in evidence these matters should be ignored, there has not been the opportunity to cross examine the Council on these matters so that any reliance on them would be prejudicial to the Appellants. In any event, the Council concludes that the relevant parts of the new Framework essentially mirror provisions within the 2012 Framework so even if relevant they should not alter the decision in these appeals."
"The fact that the development plan is out of date and that the Council cannot demonstrate a five year supply of deliverable housing against its housing requirements or local needs mean that that the presumption in favour of sustainable development and the "tilted balance" (11d)) are engaged. The adverse impacts of the developments do not significantly and demonstrably outweigh the benefits of the developments and as such the appeals should be allowed.
Even if the view is taken that the tilted balance is not engaged, the serious shortcomings in the housing supply of Salford; the adverse social and economic impacts this is having on the City; and the significant and weighty benefits of the development comprise material considerations that justify the grant of planning permission notwithstanding minor conflict with the development plan."
15. The Secretary of State has gone on to consider whether policy EN 2 of the SUDP is out of date. For the reasons given at IR366-367, the Secretary of State agrees that the policy remains part of the development plan, and is not inconsistent with the Framework. For the reasons given by the Inspector at IR368-369, he concludes that the recognition of the need to release greenfield land and/or Green Belt to meet future housing needs attracts little weight in the context of these proposals.
16. For the reasons given at IR371-371, the Secretary of State agrees that even in the absence of policies for the need and distribution of housing, there remains a plan in place, and a policy for the land in question which is sufficient to establish that the developments are unacceptable in principle, and so the plan is in line the paragraph 11(d) of the Framework. He concludes, in agreement with the Inspector at IR370, that Policy EN 2 is not out of date.
17. He has gone on to consider the impact of the proposals on the Greenway. For the reasons given at IR345-IR350, the Secretary of State agrees that the developments would detract from openness of the Greenway and that there would therefore be a breach of Policy EN2. He further agrees, for the reasons given at IR351-IR352, that the proposal would fragment and detract from the continuity of the Greenway. For the reasons set out by the Inspector at IR353-IR359, he agrees that the proposals would impact negatively on the character and appearance of the Greenway.
18. The Secretary of State agrees, for the reasons given at IR360-1R361, that in spite of the potential benefits which would provide some mitigation, there would be a small but unacceptable harm to the recreation and amenity value of the Greenway, in conflict with Policy EN 2. However, he agrees with the Inspector and the parties [IR362] that there would be no harm to the Greenway as a wildlife or agricultural resource, and in that respect it does not conflict with Policy EN 2 or Policy EN 9 of the SUDP.
19. However, overall he finds for the reasons above that the developments would fragment and detract for the openness and continuity of the Greenway and would cause unacceptable harm to its character and its value as an amenity and open recreational recourse, and as such that there would be a clear and fundamental conflict with Policy EN 2 of the SUDP, in agreement with the Inspector at IR363. For the reasons set out by the Inspector at IR364-365, the Secretary of State also agrees that the proposals conflict with the first two criteria of the SUDP Policy R 4. As such, and given his findings above, he affords the fundamental conflict with the policy substantial weight."
"22. As such, the Secretary of State has gone on to calculate housing land supply. Using the methodology set out the in Guidance, the Secretary of State concludes that Local Housing Need is 1,084. As that is not 40% more than recent annual housing requirement of 785 dpa, he does not apply a cap to this figure. He has gone on to consider paragraph 73 of the Framework. While he has had regard to the Council's representations at IR 233-238 as regards mitigation, he concludes that there has been significant underdelivery in two of the three preceding years. As such he applies a 20% buffer, thus finding a five year housing land supply of 6,504.
23. Against this he sets the Council's deliverable housing supply of 17,788 dwellings. As such he finds that the council can demonstrate a housing land supply of over 13 years.
24. However, the Secretary of State further notes that even were he to make use of a housing land supply figure based on a method predating the Framework, as the Inspector did at IR376, or calculated using the standard method but reflecting the 2014 household growth figures, the Council would be able to demonstrate comfortably a five year housing land supply, so it would not make a difference to his overall conclusion.
25. As such he concludes, in agreement with the Inspector [IR377], that Policy EN 2 is not impeding delivery, nor the development plan as a whole failing to deliver the necessary number of houses needed.
26. However, for the reasons set out at IR375 and IR378-IR380, the Secretary of State agrees that the Council is not meeting the needs of the housing market as a whole, and that there are significant deficiencies in the number of larger/aspirational family homes, and wider issues with homelessness and affordability. While the Council is seeking to address this through the local plan process, the Secretary of State agrees [IR381] that at present individual schemes are the only way in which to begin to address such needs.
27. As such, for the reasons given at IR382, he gives significant weight in favour of the appeals to their contribution towards meeting the needs for family/aspirational housing and affordable housing. For the reasons given at IR383, he agrees that the additional provision of affordable housing does not meet the tests for planning obligations and as such he affords no additional weight to the proposed provision beyond a 20% contribution."
"40. For the reasons given above, the Secretary of State considers that the appeal schemes are not in accordance with Policies EN 2 and R 4 of the development plan, and are not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposals should be determined other than in accordance with the development plan.
41. In favour of the appeals, the Secretary of State weighs the provision of affordable and aspirational housing, which attract significant weight. He also takes into account the transport improvements offered by the proposals, which he affords very limited weight. He affords moderate weight to the improvements in relation to flood risk. He attaches minimal weight to the benefits in terms of sports pitches and play areas. Further limited weight accrues to the socioeconomic benefits of the proposals. As regards Appeal A, he adds moderate weight to the provision of a shuttle bus. As regards Appeal B, he also gives further limited weight to the education provision provided by the scheme.
42. Against the proposals he weighs the impact on the character and appearance, and openness and continuity, of the Greenway. He affords these harms, and the resulting conflict with development plan policy, substantial weight. He also gives limited weight to the harm by way of increased air pollution.
43. As such the Secretary of State concludes that there are no material considerations sufficient to justify determining the appeals other than in line with the Development Plan.
44. The Secretary of State therefore concludes that the appeals should be dismissed and planning permission refused."
The Claimant's grounds in brief
"19 Preparation of local development documents
(1B) Each local planning authority must identify the strategic priorities for the development and use of land in the authority's area.
(1C) Policies to address those priorities must be set out in the local planning authority's development plan documents (taken as a whole)."
"Local development documents
5(1). For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are:
(a) any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities which contain statements regarding one or more of the following-
(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) the allocation of sites for a particular type of developmental use;
(iii) any environmental, social, design and economic objectives which are relevant to the obtainment of the development and use of land mentioned in paragraphs (1) and;
(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission;"
"23. In my view in the light of the authorities the following principles emerge as to how questions of interpretation of planning policy of the kind which arise in this case are to be resolved:
i) The question of the interpretation of the planning policy is a question of law for the court, and it is solely a question of interpretation of the terms of the policy. Questions of the value or weight which is to be attached to that policy for instance in resolving the question of whether or not development is in accordance with the Development Plan for the purposes of section 38(6) of the 2004 Act are matters of judgment for the decision-maker.
ii) The task of interpretation of the meaning of the planning policy should not be undertaken as if the planning policy were a statute or a contract. The approach has to recognise that planning policies will contain broad statements of policy which may, superficially, conflict and require to be balanced in ultimately reaching a decision (see Tesco Stores at paragraph 19 and Hopkins Homes at paragraph 25). Planning policies are designed to shape practical decision-taking, and should be interpreted with that practical purpose clearly in mind. It should also be taken into account in that connection that they have to be applied and understood by planning professionals and the public for whose benefit they exist, and that they are primarily addressed to that audience.
iii) For the purposes of interpreting the meaning of the policy it is necessary for the policy to be read in context: (see Tesco Stores at paragraphs 18 and 21). The context of the policy will include its subject matter and also the planning objectives which it seeks to achieve and serve. The context will also be comprised by the wider policy framework within which the policy sits and to which it relates. This framework will include, for instance, the overarching strategy within which the policy sits.
iv) As set out above, policies will very often call for the exercise of judgment in considering how they apply in the particular factual circumstances of the decision to be taken (see Tesco Stores at paragraphs 19 and 21). It is of vital importance to distinguish between the interpretation of policy (which requires judicial analysis of the meaning of the words comprised in the policy) and the application of the policy which requires an exercise of judgment within the factual context of the decision by the decision-taker (see Hopkins Homes at paragraph 26)."
"Notification of decision
18(1) The Secretary of State shall, as soon as practicable, notify his decision on an application or appeal, and his reasons for it in writing to- (a) all persons entitled to appear at the inquiry who did appear, and (b) any other person who, having appeal at the inquiry, has asked to be notified of the decision."
"19. The relevant law is not controversial. It comprises seven familiar principles:
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 parities 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"
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 "principle 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 issue in the dispute, not to every material consideration.
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"
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 to properly 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.
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.
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.
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."
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principle important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer not to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon such future application. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"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."
"35. Even reading the DL benevolently, as is appropriate for planning decisions of this kind; adopting the proper approach of avoiding nit-picking analysis of a decision letter with a view to trying to identify errors when in substance there are none; and also bearing in mind the expertise of the Inspector and his likely familiarity with the NPPF, it is clear that the Inspector has failed to grapple as he should have done with the issue posed by para. 215 of the NPPF.
36. This is not just a matter of a failure to give reasons. It is clear from the DL read as a whole that the Inspector has not sought to assess the issue of the weight to be accorded to policies HS22 and HS24 under the approach mandated by para. 215 at all. As the judge correctly identified, this appears from the deficiencies of the Inspector's reasoning at DL68 and his excessively narrow focus on paras. 47 and 49 of the NPPF, to the exclusion of other relevant policies in the NPPF which ought to have been brought into account in any proper analysis of the consistency of policies HS22 and HS24 with the policies in the NPPF. I add that it is a notable feature of the DL that, after making the necessary correction for the Inspector's slip in DL15 in referring to para. 215 of the NPPF when he meant para. 113, the DL makes no reference at all to para. 215, even though that was the provision in the NPPF which set out the approach which the Inspector ought to have followed."
"40. I would formulate the position in this way:
i) Since old policies of the kind illustrated by policies HS22 and HS24 in this case are part of the development plan, the starting point, for the purposes of decision-making, remains section 38(6) of the 2004 Act. This requires that decisions must be made in accordance with the development plan - and, therefore, in accordance with those policies and any others contained in the plan - unless material considerations indicate otherwise. The mere age of a policy does not cause it to cease to be part of the development plan; see also para. 211 of the NPPF, set out above. The policy continues to be entitled to have priority given to it in the manner explained by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447, HL, at 1458C-1459G.
ii) The weight to be given to particular policies in a development plan, and hence the ease with which it may be possible to find that they are outweighed by other material considerations, may vary as circumstances change over time, in particular if there is a significant change in other relevant planning policies or guidance dealing with the same topic. As Lord Clyde explained:
"If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance" (p. 1458E).
iii) The NPPF and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations. Paragraph 215 sets out the approach to be adopted in relation to old policies such as policies HS22 and HS24 in this case, and as explained above requires an assessment to be made regarding their consistency with the policies in the NPPF. The fact that a particular development plan policy may be chronologically old is, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF.
iv) Since an important set of policies in the NPPF is to encourage plan-led decision-making in the interests of coherent and properly targeted sustainable development in a local planning authority's area (see in particular the section on Plan-making in the NPPF, at paras. 150ff), significant weight should be given to the general public interest in having plan-led planning decisions even if particular policies in a development plan might be old. There may still be a considerable benefit in directing decision-making according to a coherent set of plan policies, even though they are old, rather than having no coherent plan-led approach at all. In the present case, it is of significance that the Secretary of State himself decided to save the Local Plan policies in 2007 because he thought that continuity and coherence of approach remained important considerations pending development of appropriate up-to-date policies.
v) Paragraph 49 of the NPPF creates a special category of deemed out-of-date policies, i.e. relevant policies for the supply of housing where a local planning authority cannot demonstrate a five-year supply of deliverable housing sites. The mere fact that housing policies are not deemed to be out of date under para. 49 does not mean that they cannot be out of date according to the general approach referred to above.
41. In the particular circumstances of this case Mr Kimblin submitted (i) that the facts that policies HS22 and HS24 appeared in a Local Plan for the period 1991-2006, long in the past, and were tied into the Structure Plan (in particular, in relation to policy HS24, as set out in the explanatory text at para. 4.97 of the Local Plan), which is now defunct, meant that very reduced weight should be accorded to them; (ii) that the Local Plan policies in relation to housing supply, which include policies HS22 and HS24, are "broken" and so again should be accorded little weight; and (iii) that policies HS22 and HS24 have been superseded by more recent guidance, in the form of para. 47 of the NPPF, and so should be regarded as being outdated in the manner explained by Lord Clyde in City of Edinburgh Council I do not accept these submissions.
42. As to (i), policies HS22 and HS24 were saved in 2007 as part of a coherent set of Local Plan policies judged to be appropriate for the Council's area pending work to develop new and up-to-date policies. There was nothing odd or new-fangled in the inclusion of those policies in the Local Plan as originally adopted in 1997. It is a regular feature of development plans to seek to encourage residential development in appropriate centres and to preserve the openness of the countryside, and policies HS22 and HS24 were adopted to promote those objectives. Those objectives remained relevant and appropriate when the policies were saved in 2007 and in general terms one would expect that they remain relevant and appropriate today. At any rate, that is something which needs to be considered by the planning inspector when the case is remitted, along with the question of the consistency of those policies with the range of policies in the NPPF under the exercise required by para. 215 of the NPPF. The fact that the explanatory text for policy HS24 refers to the Structure Plan does not detract from this. It is likely that the Structure Plan itself was formulated to promote those underlying general objectives and the fact that it has now been superseded does not mean that those underlying objectives have suddenly ceased to exist. As the judge observed at , "some planning policies by their very nature continue and are not 'time-limited', as they are re-stated in each iteration of planning policy, at both national and local levels."
43. As to (ii), the metaphor of a plan being "broken" is not a helpful one. It is a distraction from examination of the issues regarding the continuing relevance of policies HS22 and HS24 and their consistency with the policies in the NPPF. As Mr Kimblin developed this submission, it emerged that what he meant was that it appears that the Council has granted planning permission for some other residential developments in open countryside, i.e. treating policy HS24 as outweighed by other material circumstances in those cases, and that it relies on those sites with planning permission, among others, in order to show that it has a five year supply of deliverable residential sites for the purposes of para. 47 (second bullet point) and para. 49 of the NPPF. Mr Kimblin says that this shows that the saved policies of the Local Plan, if applied with full rigour and without exceptions, would lead the Council to fail properly to meet housing need in its area, according to the standard laid down in paras. 47 and 49 of the NPPF. Therefore, he says, no or very reduced weight should be accorded to policies HS22 and HS24.
44. In my view, this argument is unsustainable. We were shown nothing by Mr Kimblin to enable us to understand why the Council had decided to grant planning permission for development of these other sites. So far as I can tell, the Council granted planning permission in these other cases in an entirely conventional way, being persuaded on the particular facts that it would be appropriate to treat material considerations as sufficiently strong to outweigh policy HS24 in those specific cases. Having done so, there is no reason why the Council should not bring the contribution from those sites into account to show that it has the requisite five year supply of sites for housing when examining whether planning permission should be granted on Gladman's application for the site in the present case. The fact that the Council is able to show that with current saved housing policies in place it has the requisite five year supply tends to show that there is no compelling pressure by reason of unmet housing need which requires those policies to be overridden in the present case; or to use Mr Kimblin's metaphor it tends positively to indicate that the current policies are not "broken" as things stand at the moment, since they can be applied in this case without jeopardising the five year housing supply objective. In any event, an assessment of the extent of the consistency of policies HS22 and HS24 with the range of policies in the NPPF is required, as set out in para. 215 of the NPPF, before any conclusion can be drawn whether those policies should be departed from in the present case."
"Interpretation of paragraph 14
54. The argument, here and below, has concentrated on the meaning of paragraph 49, rather than paragraph 14 and the interaction between the two. However, since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the "tilted balance" under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are "significantly and demonstrably" outweighed by the adverse effects, or where "specific policies" indicate otherwise. (See also the helpful discussion by Lindblom J in Bloor Home East Midlands Ltd v Secretary of State for Communities and Local Government  EWHC 754 (Admin), paras 42ff)
55. It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgement, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgement, not dependent on issues of legal interpretation.
56. If that is the right reading of paragraph 14 in general, it should also apply to housing policies deemed "out-of-date" under paragraph 49, which must accordingly be read in that light. It also shows why it is not necessary to label other policies as "out-of-date" merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgement for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the "tilted balance"."
"63. It is convenient to begin with the Willaston appeal, where the issues are relatively straightforward. On any view, quite apart from paragraph 49, the current statutory development plan was out of date, in that its period extended only to 2011. On my understanding of paragraph 49, the council and the inspector both erred in treating policy NE.2 ("Countryside") as "a policy for the supply of housing". But that did not detract materially from the force of his reasoning (see the summary in paras 44-45 above). He was clearly entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from "settlement boundaries that in turn reflect out-of-date housing requirements" (para 94). He recognised that policy NE.4 had a more specific purpose in maintaining the gap between settlements, but he considered that the proposal would not cause significant harm in this context (para 95). His final conclusion (para 101) reflected the language of paragraph 14 (the tilted balance). There is no reason to question the validity of the permission."
"34. The acid test in relation to whether or not a policy is out of date is, it will be recalled, the extent to which it is consistent with the Framework. In paragraph 40 (following from earlier reasoning from paragraph 36) the Inspector accepts that there is "some discrepancy" between policy DM4 and paragraph 113 of the Framework. It will be recalled that the Inspector in the Meppershall appeal had noted this conflict, and also that the policy went beyond the policy of the Framework set out in the fifth bullet point of paragraph 17 of the Framework. The Inspector appears not to accept the decision of the Meppershall Inspector in this respect in paragraph 36 of the decision letter when he states, "the Framework also makes clear in paragraph 17 that the intrinsic character and beauty of the countryside should be recognised". He does not deal with this aspect of inconsistency with the Framework when he deals with the discrepancy which he has found between the policy and the Framework in paragraph 40, as he limits his observations to paragraph 113. The inconsistency of policy DM4 with the fifth bullet point of paragraph 17 of the Framework is, again, a further and important aspect of the Meppershall appeal decision which the Inspector does not grapple with. If he is disagreeing with the conclusion that the policy DM4 goes beyond the Framework policy in the fifth bullet point of paragraph 17 that is not clear, and if that were the case he has failed to explain why he has formed a different view from the Meppershall Inspector. It is clear that this element of inconsistency with Government policy was a matter which formed part of the justification for the Meppershall Inspector concluding that policy DM4 was out of date. The Inspector's reasons are therefore, again, legally inadequate in respect of this departure from the decision reached by the Meppershall Inspector.
35. For all of these reasons I am satisfied that the second element of Ground 1 is made out and, in effect, I agree with the reasons provided by the First Defendant for concluding that the Inspector erred in law. In those circumstances it is not necessary to consider in detail the further submission that the Inspector misconstrued and misapplied the decision of the Court of Appeal in Daventry. In my view the precise position in relation to the Claimants' submissions is unclear. I have already observed that the Inspector's reference to the Daventry case does not provide adequate reasoning to explain his departure from the earlier decisions. In so far as he was drawn to the reasoning in paragraphs 41-46 of Sales LJ's judgment as providing some kind of support for his conclusions, as I have already observed, those paragraphs did not form the substance of the decision of the Court of Appeal's decision and Sales LJ observations were obiter.
36. Furthermore, Sales LJ was careful to express his conclusions in a contingent manner, since how the judgement on whether or not policies HS 22 and HS 24 were out of date was going to be resolved would depend upon the evidence available to the decision-taker at the redetermination. I will confine myself to the following observations in respect of those obiter remarks. Firstly, in so far as paragraph 42 of the judgement is concerned, and the reference to those policies being in place "to preserve the openness of the countryside" (in addition to encouraging residential development at appropriate centres) it is important to observe that in the case of Policy DM4 the Meppershall Inspector (and indeed earlier Inspectors) had concluded that the previous national policy of simply protecting the countryside for its own sake had given way to a more sophisticated policy reflected in the fifth bullet point of paragraph 17 and paragraph 113 of the Framework. This reinforces the need when arguments arise as to whether or not a policy is out of date to carefully apply paragraph 215, and examine the circumstances of the particular policy and the evidence pertaining to it to determine the extent to which it is consistent with the Framework. In a similar manner the conclusions of Sales LJ in paragraph 44 need to be put in the context that Sales LJ ultimately left the conclusion as to whether or not policies HS 22 and HS 24 were consistent with the policy of the Framework to an evaluation in the redetermination of that case.
36. It appears to me that in paragraph 44 of his judgment all that Sales LJ was suggesting was that the fact that the council had granted planning permission for some of the sites in the five-year housing land supply on sites in breach of policy HS 24 would not in and of itself justify a conclusion that that policy was out of date. That was an issue which would require, again, careful evaluation against the background of the terms of the policy, the available evidence as to its performance and scrutiny of its consistency with the Framework. That will inevitably be a case-sensitive exercise. In the present case Ms Sheikh accepted, in my view correctly, that the decision which the Meppershall Inspector had reached in relation to whether or not policy DM4 was out of date was one which was rationally open to him, and which demonstrated the way in which a rational planning judgement can be formed on the facts of a particular case. It further demonstrates that Sales LJ was not laying down any legal principle in what he observed in paragraph 44 of his judgement."
Submissions and conclusions