Mid Suffolk District Council v Secretary of State for Levelling Up, Housing and Communities

Hearing date: 30–31 January 2024

Approved Judgment

This judgment was handed down remotely at 2.00pm on 23 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr James StrachanKC (sitting as a Deputy Judge of the High Court):

Introduction

This is a claim under section 288(4A) of the Town and Country Planning Act 1990 (“the 1990 Act”) by Mid-Suffolk District Council (“the Claimant”), the local planning authority, challenging a decision dated 26 July 2023 (“the Decision”) of a planning inspector, Stephen Wilkinson BA BPI Dip LA MBA MRTPI (“the Inspector”) appointed by the Secretary of State for Levelling Up, Housing and Communities (“the 1 ^st Defendant”).

The Inspector allowed an appeal made under section 78 of the 1990 Act by Gladman Developments Ltd (“the 2 ^nd Defendant”) against the Claimant's non-determination of the 2 ^nd Defendant's application for outline planning permission in respect of Land east of Ixworth Road, Thurston, Suffolk (“the Appeal Site”) for:

“Up to 210 dwellings and new vehicular access to include planting and landscaping, natural and semi natural greenspace(s), children's play area and sustainable drainage system (SuDS), to include 35% affordable dwellings” (“the Development”).

Permission to bring the challenge was granted by the Hon. Mrs Justice Lang DBE by Order dated 3 October 2023 on the two grounds set out in the Claimant's Statement of Facts and Grounds. These are:

a Ground 1 — a contention that the Inspector misinterpreted Policy SP03 of the emerging Babergh and Mid Suffolk Joint Local Plan (“the EJLP”), or in dealing with that emerging policy, the Inspector failed to take into account relevant factors, acted irrationally, or failed to provide adequate reasons.

b Ground 2 — a contention that the Inspector erred in his approach to carrying out the balancing exercise required under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”), in circumstances where it was agreed that the Development was contrary to the statutory development plan taken as a whole, by reason of conflict with policies CS1 and CS2 of the Core Strategy Focused Review 2012 and Policy H7 of the Mid Suffolk Local Plan 2018.

The two grounds of challenge therefore both turn on the particular approach adopted by the Inspector as set out in his Decision.

At the hearing of the claim, the Claimant was represented by Tom Cosgrove KC and Jack Parker of Counsel, both of whom addressed me orally. The 1 ^st Defendant was represented by Matthew Fraser of Counsel. The 2 ^nd Defendant was represented by Guy Williams KC. I record at the outset my thanks to them all for the quality and clarity of their oral and written submissions.

The Factual Background

The Appeal Site is located adjacent to, and therefore outside, the settlement boundary of the village of Thurston in Suffolk. It is agricultural land. It is common ground that it is located in the countryside for the purpose of relevant development plan policies.

The outline planning application was originally made to the Claimant as long ago as 1 May 2019. It was first considered by the Claimant's Planning Committee on 20 September 2020. At that meeting the Claimant resolved to grant planning permission, subject to completion of a satisfactory agreement under section 106 of the 1990 Act.

In the event, the Claimant did not issue the planning permission at that time because of an outstanding judicial review claim that had been brought by Thurston Parish Council against the Claimant's grant of planning permission for another housing development in respect of the same settlement. The Claimant took the view that the judicial review claim raised issues which required resolution before any permission for the 2 ^nd Defendant's Development could be issued.

The judicial review claim was not finally determined until the Court of Appeal gave judgment in October 2022 — see R(Thurston Parish Council) v Mid Suffolk District Council[2022] EWCA Civ 1417 — and then an application for permission to appeal to the Supreme Court had been rejected by the Supreme Court.

The Claimant's position was that in the intervening period between its resolution to grant planning permission, and the conclusion of the Thurston Parish Council judicial review proceedings, the planning context had changed in several regards which led it to change its stance on the Development.

Amongst other things, the Claimant pointed to the fact that during that intervening period, the Claimant had been progressing a new development plan for the area, namely the EJLP. As it happens, a final version of the EJLP was formally adopted by the Claimant on 20 November 2023. That adoption took place after the Inspector's decision in this case. The Claimant's position before the Inspector was that significant progress had been made towards its adoption. The Claimant sought to rely on that progress and the terms of the EJLP in its case opposing the Development.

When the 2 ^nd Defendant's planning application had first been considered by the Claimant in September 2020, the Appeal Site had been proposed for allocation as a residential development site in the version of the EJLP that existed at that time. This proposed allocation had been treated by the Claimant in September 2020 to be a material consideration which set the “direction of travel” as a means of addressing local and district housing needs, even though the Claimant was able to demonstrate that it had over five years' supply of housing for the purposes of paragraph 74 of the National Planning Policy Framework (“the NPPF”).

That version of the EJLP had been submitted to the 1 ^st Defendant for examination in March 2021. Hearing sessions were held later in that year before the appointed Examining Inspectors. At hearing sessions held in the week of 18th October 2021 dealing with ‘Matter 4 – Settlement Hierarchy, Spatial Distribution of Housing and Housing Site Selection Process’, the Examining Inspectors had raised a number of concerns about those aspects of the EJLP. Following correspondence, the Examining Inspectors wrote to the Claimant on 9 December 2021 expressing their views that a fundamental review of the approach to these aspects of the EJLP were likely to be necessary. The Examining Inspectors stated in that letter (amongst other things):

“6. We recognise that a large proportion of the housing site allocated in the plan already have either full or outline planning permission. As a result it is very likely that the majority of them will be implemented. However, if these sites appear in the plan as allocations they have a formal planning status of significance if the existing permission are not implemented. Consequently, notwithstanding the existing permissions, these sites need to be robustly justified in their own right against possible alternative sites and form part of a robust spatial strategy.

7. Furthermore, we understand that across the two districts, around 90% of the housing requirement figure detailed in policy SP01 is already provided for by existing completions, sites under construction, sites with full or outline planning permission, sites with a resolution to grant planning permission subject to s106 agreement, allocations in made Neighbourhood Plans and the, reasonable, allowance for 1,000 windfall dwellings. This unusual situation means that demonstrating a supply of developable housing land for the vast majority of the plan's overall housing requirement figure is, for some years to come, unlikely to be dependent on the allocation of the housing sites included in the submitted plan.

8. Whilst we cannot reach final conclusions on the other aspects and policies of the plan at this stage (pending consultation on Main Modification and further SA/ HRA work), we anticipate that, subject to the Main Modifications discussed at the hearing sessions, it is likely that we will be able to find them sound.

9. On this basis and subject to detailed discussion and consultation and necessary alteration to the Council's Local Development Schemes, we currently consider that the most appropriate way forward would be to:

— Delete policies SP04, LP09, LP30 and the LS01 and LA housing allocation policies;

— Retain the settlement boundaries in the current (as opposed to proposed) policies map;

— Significantly modify policies SP03 and LP01 to make clear where new housing development will be permitted;

…

10. In essence the plan would be a “Part 1” local plan, to be followed by the preparation and adoption of a “Part 2” local plan as soon as possible. The “Part 2” plan (and associated policies map alterations) would be likely to include:

— An up-to-date, robust settlement hierarchy;

— A spatial distribution for any housing allocations included insofar as are necessary to provide flexibility and ensure that the plan period housing requirement can be met;

— Consequent housing requirement figures for Neighbourhood Plan areas;

— Up-to-date and robustly justified settlement boundaries reflecting commitments and allocations;

…

11. In essence the preparation of the Part 2 plan would involve the same work detailed in ...