R (on the application of Weston Homes Plc) v Secretary of State for Levelling Up, Housing and Communities

Hearing dates: 11–12 June 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HON. Mr Justice Holgate

The claimant, Weston Homes plc (“Weston”), brings this challenge under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to the Inspector's decision letter dated 15 December 2023 on behalf of the defendant, the Secretary of State for Levelling Up, Homes and Communities, refusing Weston's application under s.62A of the TCPA 1990 for planning permission. The application was for the erection of 96 dwellings, parking, landscaping and public open space, access to Parsonage Road and pedestrian and cycle routes to Smiths Green Lane. The local planning authority (“ LPA”) for the site is Uttlesford District Council (“UDC”).

The background to this case can be seen from the decision letter under challenge and an earlier decision letter on a planning appeal dated 9 August 2022 (“the 2022 DL” or “the 2022 appeal”) to which I refer below.

The development plan includes the “saved policies” of the Uttlesford District Local Plan, which was adopted as long ago as 20 January 2005, and was intended to cover the period 2000 to 2011. The deposit draft for that plan was issued in October 2001. The plan was prepared under the former regime set out in the TCPA 1990, as amended by the Planning and Compulsory Purchase Act 2004. The plan was prepared in the context of the Regional Spatial Strategy (“RSS”) for the East of England (2004) and the Essex and Southend-on-Sea Replacement Structure Plan (2000). Subsequent legislation has abolished structure plans and RSSs.

In November 2023 UDC issued for consultation a draft of a new local plan (“the 2023 draft Plan”) covering the period 2021 to 2041 to replace the 2005 Plan (under reg.18 of the Town and Country Planning Act (Local Planning) (England)Regulations 2012 (SI 2012 No. 767)). By the time of the Inspector's decision a year later the 2023 draft Plan had still not reached the next stage under reg.19.

Section 62A (1) and (2) of the TCPA 1990 enables an applicant to choose to submit his application for planning permission to the Secretary of State instead of the LPA if that authority is “designated by the Secretary of State for applications of a description specified in the designation” and “the application falls within that description.”

Section 62B enables the Secretary of State to designate an authority for the purposes of s.62A if he considers that there are respects in which the authority is not adequately performing their functions of determining applications under Part II of the TCPA 1990 by reference to criteria in a document laid before Parliament under subsection (2).

“Improving Planning Performance – the criteria for designation” deals with the performance of a LPA separately in the determination of applications for “major development” and “non-major development.” The criteria relate to the speed with which applications are dealt with and the quality of decision-making (measured by the proportion of decisions overturned on appeal).

On 7 February 2022 the Secretary of State issued a designation notice in respect of UDC. He considered data for the 2-year period ending on 31 March 2020 and subsequent appeal decisions to 31 December 2020 on the quality of decision-making by LPAs on applications for planning permission for major development. He decided that UDC was not performing adequately in that respect and therefore designated the council under s.62B in relation to major development applications. The designation came into effect on 8 February 2022 and remains in force until revoked.

Weston's development site lies to the north of Takeley, the largest village in Uttlesford District, and to the south of ancient woodland known as Prior's Wood. To the east lies Smiths Green Lane, designated as a “protected lane” under policy ENV9 of the local plan, which deals with local historic landscapes. To the west lies Parsonage Road. Both roads run in a north-south direction. UDC designated the Smiths Green Conservation Area on 2 November 2023. It comprises land either side of Smiths Green Lane located to the east and south of the proposed development site. It includes some Grade II listed buildings, Hollow Elm Cottage to the east of the development site and of Smiths Green Lane, and Goar Lodge and Beech Cottage, to the south of the development site. To the north of Parson's Wood and Maggots Field lies Warish Hall and Moat Bridge, Grade I listed buildings dating back to the thirteenth century.

On 9 June 2021 Weston made a detailed application for planning permission for 190 dwellings (also referred to as a proposal for 191 dwellings) distributed between three areas: 126 dwellings on the western section of Bull Field (south of Prior's Wood), 26 dwellings on Maggots Field and the eastern section of Bull Field (to the west of Smiths Green Lane) and 38 dwellings on a parcel known as Jacks to the east of Smiths Green Lane. Access to the housing on the western part of Bull Field was to be obtained from Parsonage Road. This access would run through an area known as 7 Acres (adjacent to Parsonage Road) which currently accommodates the Weston Group Business Centre and was also proposed to be developed for an additional 3568 sqm of flexible employment space and a health care medical facility. Access to the housing on Maggots Field, the eastern part of Bull Field and Jacks was to be obtained from Smiths Green Lane.

UDC refused the 2021 application on 20 December 2021 and Weston appealed against that refusal to the Secretary of State under s.78 of the TCPA 1990. A public inquiry was held between 21 June and 6 July 2022 and the Inspector issued his decision letter dismissing the appeal on 9 August 2022 (the 2022 DL).

In order to address the reasons why the 2022 Inspector dismissed the 2022 appeal, Weston produced a revised scheme the subject of its s.62A application to the Secretary of State made on 12 June 2023. This proposal omitted any development on Jacks, Maggots Field and the eastern part of Bull Field. Accordingly, no new access from Smiths Green Lane was proposed. The sole access would be from Parsonage Road. The number of dwellings proposed was reduced to 96, of which 39 (40%) would be affordable. The proposal included the provision of public open space in the eastern part of the site. A suite of application documents was accompanied by supporting material.

On 3 August 2023 the Planning Inspectorate (“PINS”) sent out a notification requiring consultees to submit representations by 7 September 2023. At that stage UDC was unable to demonstrate a 5-year supply of housing land. Accordingly, the presumption in favour of sustainable development applied unless disapplied under para. 11(d) of the National Planning Policy Framework (“NPPF”).Paragraph 11 of the NPPF provides that:

“Plans and decisions should apply a presumption in favour of sustainable development.

For plan-making this means that:

a) ….;

b) ….

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-date ⁸, 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 proposed ⁷; or

ii. 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.”

Paragraph 11(d)(i) refers to the policies identified in footnote 7 which reads:

“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 181) 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 68); and areas at risk of flooding or coastal change.”

On 30 August 2022 the members of UDC's Planning Committee decided that they would have refused to grant planning permission if the application had been made to UDC. The Council submitted its formal representations to PINS on 4 September 2023, objecting to the proposal because of harm to landscape character, the countryside and visual impact. The officer's report had advised that harm to heritage assets would be outweighed by the benefits of the scheme. UDC's formal representations did not present an objection on heritage grounds. They expressed concerns about the adequacy of the buffer between the proposed development and the ancient woodland at one pinch point (see [139] below).

PINS wrote to Weston on 12 September 2023 saying that the representations it had received had been...