Even out of date policies have weight if in Line with National Policy – The Daventry Case

Cornerstone Barristers

The impact of Daventry ‘on the ground’

Planning permission refused for up to 276 dwellings in a Local Green Gap, Clacton-on-Sea

In Daventry1 the Court of Appeal explained that, because a central theme of the NPPF was to (re)emphasise the importance of plan-led decision making, “significant weight should be given to the general public interest in having plan-led planning decisions, even if particular policies in the development plan are old” (at [40(iv)]). The Court also stressed that, when considering the weight to be given to ‘old’ development plan policies, it is necessary to consider the degree of consistency with national policy (ie the test set out in para 215 of the NPPF). The chronological age of the policies is ‘legally irrelevant’ to this question.

The impact of Daventry is demonstrated in a refusal by an Inspector last week of three proposed (and alternative) residential schemes on a site within a Local Green Gap between Clacton-on-Sea and Jaywick, Essex.

The inspector found the schemes would “fail to [maintain] separation between Clacton and Jaywick in this locality, and would effectively close the countryside gap between the settlements in this area” and therefore would be contrary to the Local Green Gap policy (Policy EN2). Despite it being common ground that the Local Planning Authority could not demonstrate a 5 year housing land supply such that the ’tilted balance’ within para 14 of the NPPF was in play, and despite the fact that the LPA had previously promoted the site for housing development within the emerging Local Plan, the Inspector refused the appeal.

In doing so the Inspector recognised that although the Local Green Gap policy was old (it was adopted in 2007, and the plan period ran to 2011) its objectives were consistent with national policy and therefore its age provided no basis for substantially reducing the weight to be given to the policy. Furthermore, having regard to the decision in Hopkins Homes2, the limited degree of the housing supply shortfall and recent improvements in the supply position due to action taken by the LPA meant that significant weight should be given to the Local Green Gap policy.

As this appeal demonstrates, the combination of Hopkins Homes and Daventry is such that it now cannot be taken as a given (if it ever could) that where a development plan is dated and where the local planning authority cannot demonstrate a 5 year supply of housing, planning permission for housing proposals will ordinarily be granted. In circumstances where local policy in question is consistent with national policy, the housing shortfall is not overwhelming and the local planning authority is taking steps to address it, housing proposals which do not comply with the development plan are liable to be refused.

A copy of the Inspector’s decision is available here.

Robert Williams acted for the Local Planning Authority in the Inquiry. Cornerstone Barristers regularly acts for both Developers and Local Planning Authorities in a wide range of planning matters. For more information please contact 020 7242 4986 or email clerks@cornerstonebarristers.com

1Gladman Developments Limited v Daventry District Council [2016] EWCA Civ 1146
2Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East [2016] EWCA Civ 168

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