The Tewksbury Case – Localism Act is No Big Deal #NPPF
The Ballilaw link
Even if full weight was given to the emerging JCS, in the inspector’s view the JCS proposals were not capable of meeting the identified housing need, and therefore could not rebut the presumption in favour of development as a result of the absence of a five year housing land supply. However, he went on to consider the effect of the Localism Act 2011 on the approach to be adopted, concluding that there was nothing in the Act to alter the long established requirement for a five year housing land supply and recognising that “the tension in policy between the desire for decisions to be taken locally and the requirement for a 5 year HLS remains unaltered”.
- On the basis of this analysis the inspector’s conclusions on prematurity were as follows. First, applying paragraph 18 of PS:GP, the JCS was only just at the consultation stage, without an agreed option to take it forward, and in such circumstances refusal on the ground of prematurity would only seldom be justified. Second, it was very unlikely on any basis that Tewkesbury’s proposed trajectory for housing development could deliver a five year housing land supply, whichever figures were used. Third, allowing the appeals would not predetermine future decisions on the scale, location or timing for any of the other proposed development sites which would be required under the JCS. Accordingly, Tewkesbury’s evidence failed the test indicated in paragraph 19 of PS:GP of showing clearly how allowing the appeal would prejudice the outcome of the JCS process. Thus
the inspector cannot be said to have disregarded the JCS. Rather he engaged with it but concluded that it did not bear the weight which Tewkesbury sought to put upon it..
- In my judgment, subject to the issue as to the effect of the Localism Act and the policy which it embodies, the inspector’s report and the Secretary of State’s decision accepting and adopting that report were the result of an entirely unexceptional application of the legal and policy principles set out above. In particular, the inspector and the Secretary of State were entitled to conclude that (1) the existing pre-PCPA 2004 development plan was outdated and therefore of very little weight; (2) the need for a five year housing supply was a material (and in fact the most important material) consideration; (3) Tewkesbury was unable to demonstrate such a supply in this case; (4) accordingly a presumption in favour of granting permission applied; (5) the emerging JCS was of little weight because it was at a very early stage; (6) in any event the proposals in the JCS were incapable of meeting the demand for housing during the next five years; (7) granting permission would not prejudice the JCS process; (8) there was therefore no basis to refuse permission on the ground of prematurity or otherwise because of the JCS; and (9) overall, the balance came down in favour of granting permission. Each of these conclusions was the result of applying well established principles and policies to the evidence before the inspector and was a legitimate exercise of planning judgment.
Mr Leigh submits that paragraph 14.8 of the inspector’s report (set out at  above) was wrong in law because the inspector treated the absence of a five year housing land supply as determinative in favour of the grant of permission, regardless of all other considerations. I would agree that if he had done so, that would have been an error of law, as paragraph 71 of PPS 3 (set out at  above) does not go that far. Nor do paragraphs 47 to 49 of the NPPF (see  above). However, as already explained, that is manifestly not what the inspector did. He was entitled to regard the lack of a five year housing supply as “the most important material consideration”, which was a matter of weight and therefore a decision for his judgment, but he did not treat it as a trump card overriding and rendering irrelevant everything else. I would not accept that (as Mr Leigh put it) once the lack of a five year housing supply had been identified, the result was a foregone conclusion.
The Localism Act – A Fundamental CHange?
I come now to the question whether the Localism Act 2011 has brought about a fundamental change in the approach to planning applications so as to vitiate the conclusions reached by the Secretary of State. Mr Leigh submits that it has, so that much greater weight must now be given to the views of the local planning authority. He identifies the change, not so much in the words of the Act (I invited him to draw to my attention the statutory provisions which had the effect contended for, but he made clear that this was not how he put his case) but in broad statements made by government ministers and others as to what the Act was intended to do, eliminating “top down” planning and transferring power to local communities.
- However, the core principle in paragraph 17 must be read in the context of the NPPF as a whole. That context includes (1) the presumption in favour of sustainable development in paragraph 14; (2) the requirement to boost significantly the supply of housing in paragraph 47; (3) the need, also in paragraph 47, for a five-year supply of housing land and the corresponding injunction in paragraph 49 that policies for the supply of housing should not be considered up to date if a five-year supply cannot be demonstrated; (4) the one year transitional period for development plans adopted in accordance with the PCPA 2004 by paragraph 214; and (5) the confirmation of the principle of prematurity contained in paragraph 216….
- In my judgment these matters are capable of being read together as a coherent whole. They demonstrate that, for the future, development plans prepared by local planning authorities in accordance with the national policy principles set out in the NPPF, including the provision of a five year housing land supply, will represent the starting point for consideration of planning applications, and that it may well be difficult to obtain permission for developments which are not in accordance with such plans. However, they do not suggest that greater weight should be accorded to the views of local authorities who do not have such a development plan (or during the one year transitional period, a development plan produced in accordance with the PCPA 2004) over and above whatever weight would be appropriate pursuant to the long established prematurity principle. Nor do they cast any doubt on the fact that, pending the adoption of local development plans, individual planning applications will continue to be dealt with, where appropriate by the Secretary of State, applying existing principles…
- I consider, therefore, that the Secretary of State was correct to say, in paragraph 32 of the decision letter set out at  above, not only that there have been changes to the planning system as a result of the Localism Act which will give local communities more say over the scale, location and timing of developments in their areas than was previously the case, but also that this greater say over such matters will depend upon the expeditious preparation of local plans which make provision (including in particular a five year supply of housing land) for the future needs of those areas. The Secretary of State’s decision in this case is in accordance with and not in contradiction to that approach. I see, therefore, no valid basis on which it can be concluded that the Secretary of State’s decision is unlawful as being contrary to his own policy, introduced as a result of or embodied in the Localism Act
- his essential case is (and can be no more than) that in some (undefined) circumstances the views of the local authority (albeit not yet embodied in an adopted local plan) are entitled to greater weight than other material considerations such as the need for a five-year housing supply (or, in effect, that the prematurity principle should now apply in circumstances where previously it would not have done). But quite apart from the fact that no such conclusion can be drawn from the generalised policy statements on which he relies, such a case would amount, apparently for the first time in English planning law, to laying down as a rule of law a requirement as to the weight to be given to the views of the local authority rather than leaving such matters to the planning judgement of the Secretary of State or his inspector. This would contradict what Lord Hoffmann described as a fundamental principle of planning law (see  above). The Localism Act contains nothing which could be regarded as enacting such a radical change and in my judgment it is inconceivable that any such change was intended to be brought about by the policy statements which accompanied the Act.