Inspector’s failure to deal properly with neighbourhood plan conflict leads to quashing of residential scheme - Aldingbourne PC v SSCLG (CO/2105/2017)

28.11.2017

The High Court has quashed (by consent) the decision of an Inspector to grant planning permission for 14 residential units on land at Barnside, Hook Lane, Aldingbourne, West Sussex.

The proposal was contrary to the saved settlement boundary policies of the Arun Local Plan (2003) and also those within the Aldingbourne Neighbourhood Plan (2016). The Parish Council submitted reasons why, notwithstanding alack of a five-year supply of housing land across the District, the conflict with the Neighbourhood Plan policies should carry substantial weight. Having identified the policies as out of date, the Inspector did not consider the policy further.

The Secretary of State agreed the Inspector erred in law by:

Failing to have regard to a material consideration, in particular that policy EH1 of the Neighbourhood Plan could still attract weight notwithstanding that it was "out of date" within the meaning of paragraph 14 and 49 NPPF.
Failing to supply adequate reasons in respect of the weight to be applied to the Neighbourhood Plan's settlement boundary policy despite its "out of date" status within the of paragraph 14 and 49 NPPF, which was a principal, controversial issue in this case.

The decision of the Inspector predated the decision of the Supreme Court in Suffolk Coastal DC v Hopkins Homes Ltd [2017] UKSC 37 which held that only policies which deal with the numbers and distribution of new housing are deemed to be "out of date" by paragraph 49 NPPF. As such, settlement boundary policies are no longer to be considered "out of date" by paragraph 49 NPPF but, as Lord Carnwath also found, a decision taker still needs to grapple with the weight to attach to policies which constrain the supply of housing.

Practical Advice

It is now well established that even where there is a lack of a five-year supply of housing land, policies which restrict the supply of housing land may still carry weight, even a determinative amount of weight. It is therefore essential to think carefully about this matter when promoting, resisting or determining planning applications.
Pertinent considerations to the amount of weight to attach to restrictive policies will include:
- The extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy (see: Suffolk Coastal DC v Hopkins Homes Ltd [2016] EWCA Civ. 168 per Lindblom LJ at [47]).
- Where relevant, the national policy on neighbourhood plans (see: Keith Langmead Ltd v SSCLG [2017] EWHC 788 (Admin.) per Lang J at [61]).

The consent order quashing the decision can be found here.

Ashley Bowes acted for the successful claimant (instructed by David Foster at Barlow Robbins LLP) and Harriet Townsend acted for the developer (instructed by Harrops & Hepburn Solicitors).

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