High Court takes robust view to reasons challenge in respect of “secondary” issue of prematurity

12 Feb 2019

Planning and Environment

The High Court has dismissed a challenge by South Gloucestershire Council to a decision by a planning inspector to grant planning permission to Welbeck Strategic Land LLP (represented by Mark Lowe QC and Jack Parker) for 350 dwellings and a 70-unit elderly care facility at Cleve Park, Thornbury, Gloucestershire.

In South Gloucestershire Council v SSHCLG and Welbeck Strategic Land LLP [2019] EWHC 181 (Admin), the Council alleged that the Inspector had failed to properly apply the PPG on prematurity and had otherwise failed to give proper reasons for his decision. Although not a reason for refusal of the application, the Council argued in the appeal that the emerging strategic Joint Spatial Plan proposing new development for Thornbury and elsewhere was sufficiently advanced by the time of the appeal and would be prejudiced by the appeal proposal so that permission should be refused on grounds of prematurity pending adoption of the emerging Plan.

In his decision letter, the Inspector did not refer to the applicable Planning Practice Guidance on prematurity and dismissed the Council’s arguments in four relatively short sentences as follows:

I give little weight to the prematurity argument. This did not form part of the Council’s reasons for refusal and seemed to miss the point of the planning application. The application was submitted, following extensive discussions with Officers, to address the acknowledged shortfall in housing in South Gloucestershire. It was not an attempt to leap-frog the emerging plan process; it is an attempt to address past failures to provide sufficient housing.

The Court dismissed the Council’s challenge. The issue of prematurity was “secondary” in the appeal (and not, therefore, a ‘principal important controversial issue’ in the context of the dicta in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953). In any event, the Inspector’s reasons were clearly intended to summarise the detailed (and ultimately persuasive) evidence given by the planning witness on behalf of Welbeck Strategic Land LLP. As an experienced Inspector, he was plainly aware of the PPG and applied it.

Ultimately, Mrs Justice Lang found (at paragraph 38) that “the parties were well aware of the competing submissions about prematurity and the application of the PPG. There was not any real, as opposed to forensic, doubt as to what the Inspector’s reasons were.”

The robust position taken by the Court demonstrates the importance of identifying clearly what are the “principal” controversial issues in an appeal and illustrates the dangers in seeking to “dress up” what are effectively merits challenges and the adoption of an overly legalistic, nit-picking approach. Inspectors are entitled to deal shortly with issues by reference to the parties’ evidence and without elaborate citation of relevant policy and guidance.

Mark Lowe QC and Jack Parker (instructed by John Baird of Osborne Clark) appeared on behalf of Welbeck Strategic Land LLP. Dominic Lawson of DLBP appeared as the planning witness in the appeal.

You can read the judgment here

For further information about this case, please contact Mark or Jack or their clerks on clerks@cornerstonebarristers.com