NPPF and other material considerations outweighed local development plan protection

Section 38(6) of the Planning and Compulsory Purchase Act 2004 says an application for planning permission has to be determined, “in accordance with the policies of a development plan unless material considerations indicate otherwise.”

The National Planning Policy Framework (“NPPF”) lays out the Government’s planning policy. A key principle is:

“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 though both plan-making and decision-taking.”

The NPPF says the presumption in favour of sustainable development should be considered on housing planning applications.

Para 49 of the NPPF just relates to policies on housing supply and says:

“Relevant policies for the supply of housing should not be considered up to date if the local authority cannot demonstrate a five-year supply of deliverable sites.”

In Ash Parish Council, R (On the Application Of) v Guildford Borough Council [2014] the applicants sought judicial review of Guildford Borough Council’s planning permission for a 46 hectare 400 dwelling Greenfield residential development.

The Council did not have a five-year housing land supply so Para 49 of NPPF was engaged.

The application site fell entirely within ‘Countryside beyond the Green Belt’ (CBGB) Policy RE4 of the Guildford Local Plan which therefore applied to the application.

Policy RE4 provided that no development was to be permitted upon such land unless it was within one of four categories, none of which applied.

The officer’s report wrongly advised the planning committee that no weight should attach to RE4 because it pre-dated the NPPF. The main issue was whether the officer’s report significantly misled the Council into granting the planning permission.

However the High Court said the officer’s report had to be construed as a whole and in the light of oral advice given at the committee meeting.

It had been right to give policy RE4 reduced weight on the basis of paragraph 215 of the NPPF.

This said:

” 215. In other cases …….. due weight should be given to relevant policies in existing plans according to their degree of consistency with [the NPPF] (the closer the policies in the plan to the policies in [the NPPF], the greater the weight that may be given).”

The weight to be attached to policy RE4 was reduced because of its non-conformity, in part, with the national policy in the NPPF.

Later parts of the officer’s report had correctly advised:

1. A material consideration was the need to provide an adequate supply of deliverable housing land when there was a substantial and historic shortfall in that supply.

2. That was capable of outweighing policy RE4 and it outweighed the harm to the character of the land.

So, the officer had correctly advised the committee that they could attach significant weight to the substantial shortfall in housing land supply.

As a classic matter of planning judgement, the decision makers were entitled to say those other material considerations outweighed the breach of the development plan.

The planning decision makers had been entitled to conclude that the application should be granted permission as the adverse impacts of the proposed development did not significantly and demonstrably outweigh the benefits.

The land was outside the Green Belt so it was in one of the least resticted areas of the borough.

The advice that no weight be given to policy RE4 had been corrected by points 1 and 2 above.

Even if RE4 should have been given greater weight it would have made no difference to the eventual decision. The High Court would have exercised its discretion and refused to quash the planning permission.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.